SENDAMARAI ANIMALV Vs. VIJAYA RAJAGOPAL CHETTIAR

JUDGEMENT

(1.) The defendant in 0. S. No. 207 of 1982 on the file of the Court of the First Additional Subordinate Judge, Pondicherry, is the petitioner in this civil revision petition which is directed against the finding recorded by the Court below on the preliminary issue regarding limitation. That suit was laid by the respondent herein for the recovery of a sum of Rs. 12,860 with subsequent interest on the basis of a simple mortgage for Rs. 5000 executed by the petitioner on 21-51969 agreeing to repay the principal amount with interest at 12 per cent per annum.. The suit was instituted on 28-6-1982. In the written statement filed by the petitioner, she raised a plea that the suit is barred by limitation and prayed for the dismissal of the suit.. On that plea so raised by the petitioner. an issue was framed regarding the bar of limitation and that issue was tried by the Court below as a preliminary issue. The Court below took the view that as the provisions of French Code Civil would continue to apply, a longer period of limitation than that prescribed under the provisions of the Limitation Act, 1963, would be available in Pondicherry territory and that even if the claim under the mortgage had become barred in 1981 under Art. 62 of the Limitation Act 1963, since the mortgage deed contained a personal covenant to pay the mortgage money, Art. 113 of the Limitation Act 1963, would apply and the suit instituted on 28-6-1982, would still be in time. Accordingly, the preliminary issue relating to limitation was answered in favour of the respondent. It is the correctness of this order that is challenged in this civil revision petition.

(2.) The principal question that arises for consideration is whether the, suit instituted by the respondent on 28-6-1982 for the recovery of the amount due under the mortgage dated 21-5-1969 executed by the petitioner is in time. On the footing that the provisions of the Limitation Act 1963, would apply, the relevant Article applicable would be Art. 62, which runs as under: "62 To enforce payment of money secured by a mortgage or otherwise charged upon immovable The language employed in the last column "when the money sued for becomes due" would depend upon the terms of instrument in each case and obviously refers to the point of time flowing from the contract between the parties as the date fixed for in the mortgage as the date by which the amount should be repaid. In paragraph III of the plaint, while giving details of the terms of the simple mortgage sued upon, the respondent has stated that the petitioner borrowed the sum of Rs. 5000 from him by executing a simple mortgage over certain properties agreeing to repay the Principal with interest at 12 percent per annum within a period of three years. Therefore, as per the terms of the deed of mortgage between the parties, the date fixed for repayment was 21-5-1 1972 and it was on that date that the money sued for became due and the suit having been instituted on 211-1-1982 within 12 years from the date when the money became due, the suit would be in time, even if Art. 62 of the Limitation Act 1963 is applicable.

(3.) The matter may be looked at from another angle as well. After the de juremerger of the erstwhile French Indian Territory took place on 16-8-1962, under S. 4 of the Pondicherry (Administration) Act 1962, which came into force on 6-12 1962, all the laws formerly in force in that territory were continued. In other words, the Local law of limitation, which was in force in Pondicherry territory, continued to remain as such. Under S. 3(1) of the Limitation Act, subject to the provisions contained in Ss. 4 to 24 (inclusive), every suit instituted, appeal preferred and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. S. 32 of the Limitation Act 1963 repealed the Limitation Act 1908 and not any other law. In S. 29(2) of the Limitation Act 1963. provision has been made to the effect that where any special or local law prescribes for any suit, appeal or application, a period of limitation different from the period prescribed by the Schedule, the provisions of S. 3 shall apply, as if suit period were the period prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in S. 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which they are not expressly excluded by such ape of 4 cial or local law. By S. 0. 3118 the Ministry of Law, Legislative department, dated 29-10-1963, the First. of January 1964 was appointed as the date on which the Limitation Act 1963, shall come into force. Even with reference to the Union Territory of Pondicherry which had by the Fourth Amendment to the Constitution, which came into force on 28-121962, had become part of India, the provisions of the Limitation Act 1963, applied even to such a territory, as under cl. (2) of S. 1 of the Limitation Act it was provided that it extended to the whole of India, excepting the State, of Jammu -and Kashmir. The cumulative effect of S. 3 and S. 29(2) of the Limitation Act 1963 is that where any special or local law prescribed for a proceeding a period of limitation different,. from the provision made in that regard !in the Schedule, then S. 3 shall be applicable, as if such period were the period prescribed by the Schedule and for ascertaining the period of limitation prescribed for any proceeding by any special or local law, Ss. 4 to 24 shall be applied to the extent to which there is no express exclusion of their applicability by such special or local law. Vie wed in this light, it is clear that S. 29(2) read with S. 3 of the Limitation Act, 1963 would operate to preserve the period of limitation earlier available under the local law, viz., French Code Civil. It was not disputed that the period of limitation under the local law was 30 years and if that be so, the suit instituted on 28-6-1982 was in time. That S. 29(2) read with Sec. 3 of the Limitation Act 1963 would have the effect of preserving the period of limitation made available earlier under the French Code Civil had been the subject matter of a few decisions. Goodman and Co. v. R. S. Thirunavukkarasu, 1976-2 Mad LJ 221 - had occasion to consider this question. there, the suit was laid for 4.tle recovery of possession of a radio set or a sum of Rs.'.450 being the value thereof. The cause of action for the suit arose in July 1965, but the suit was instituted on 23-2-1971. Relying upon Arts. 14 and 68 of the Limitation Act 1963, the trial Court dismissed the suit as barred by time. On appeal, Maharajan J. while considering the question of limitation, pointed out that the French Code Civil is a local law or special law within the meaning of S. 29 of the Limitation Act 1963 and that the saving provisions in the Limitation Act 1963 made it clear that all French enactments relating to limitations, which,, were in force in the Union Territory of Pondicherry, at the time the Limitation Act 1063. came into force, continued to be in force with this difference, viz., that the periods of limitation prescribed in the local law must continue to apply as if such periods were the periods prescribed by the schedule to the Limitation Act 1963, and for purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Ss. 4 to 24 (inclusive) shall apply on condition that those provisions are not expressly excluded by such special or local , law as has been-in force in the Union Territory of Pendicherry. Balasubrahmanyan J.in Chockalinga Mudaliar: v. Manivanna Pillai 1978-2 Mad TZ 544 considered the identical question. The suit in that. ease was based on a sale bill dated 24-1-1967 and the suit was filed on 23-6-1971 relying upon an endorsement of part payment dated 25-6-1968. The endorsement was denied by the defendant who also pleaded that. the claim was barred by time. That plea was upheld and the suit was dismissed. Ca appeal, an objection was raised that the question of limitation should be considered under the French Code Civil and not under the .Limitation Act 1963. This was rejected by the learned District Judge who was of the view that the French Code civil stood repealed by the Limitation Act, 1963, and it could not be invoked in respect of suits filed subsequent to 1-11964. In considering the correctness of .this, the learned Judge was of the view .that the Articles of Limitation laid down 'in the French Civil Code would answer the description of 'local law' in S. 29(2) of the Limitation Act, 1963 and it was held that by- reason of S. 4 (1) of the Pondicherry (Administration) Act 1962 read with S. 3 and S. 29(2) of the Limitation Act, 1963, the limitation law embedded in the French Civil Code in Pondicherry would be preserved. In doing %o, the learned Judge besides referring to Goodman and Co. v. Thirunavukkarasu, 1976-2 Mad LJ 221, relied upon two other decisions in J. A. Da P. Barreto v. A. V. de Fonseca, AIR 1969 Goa 124, and Christina D'Souza v. Zurana Pereira, AIR 1970 Goa 28. Against the decision in J. A. De P. Barreto v. A. V. De Fomseca, AIR 1969 Goa 124, an appeal was preferred to the Supreme Court and the decision of the Supreme Court is reported in Justiniano Augusto de Piedade Barreto v. Antonio Vicente Da Fonseeg . In dealing with the applicability of the provisions of the Limitation Act 1963 with reference to the territory of Goa, Daman and Diu incorporated as a Union Territory by the Constitution (Twelfth Amendment) Act 1962, with effect from 20th Dec. 1961, the Supreme Court pointed out that there is only one general law of limitation for the entire country and it is i he Limitation Act 1963, and all other, laws would be either special or local laws and that the body of provisions in thi Portuguese Civil Code dealing with the subject of limitation of suits etc, In the Union Territory of Goa, Daman and Diu is only a local law. In son holding, the Supreme Court observed, as follows (at p. 999) -