RAMAYYA Vs. NAGESWARA RAO

JUDGEMENT

(1.) In this Letters Patent Appeal, an important question of law is involved. The question of law involved is whether section 19 of the Indian Limitation Act controls section 48, Civil Procedure Code. The Full Bench of the Travancore-Cochin High Court in the case of Sankara Aiyer v. Ganapati Iyer and T. Mathai v. K. Ouseph, the Patna High Court in the case of Mahant Krishna Dayal Gir v. Ms, Sakina Bibi, and the Oudh Chief Court in the case of Narendra v Oudh Commercial Bank Fyzabad, have held that the effect of acknowledgment under section 12, Limitation Act, is to furnish a fresh start for purpose of limitation and therefore to apply the provisions of the section to the period of limitation prescribed by section 48, Civil Procedure Code is to render the provisions of the latter auction largely nugatory. In other words. they have held that section 19 of the Limitation Act does not control section 48, Civil Procedure Code. There is no decision of any other High Court against the view taken by these High Courts. Sri C. V. Dikshitulu, the learned Counsel for the appellants drew our attention to two Full Bench decisions of the Madras High Court and relying on the word prescribed used in section 19, Limitation Act he contended that the period prescribed in section 19, Limitation Act is not limited to the period in Schedule I of the Act; and that in computing the period prescribed the period which a party is entitled to exclude under any law for the time being in forcshould be taken into account.

(2.) The Allahabad High Court in the case of Harish Chandra v. Mt. Kastola Kunwar while dealing with section 19 of the Limitation Act held that the word prescribed is not defined under the Act and that it means "prescribed by any law for the time being in force" and not only the periods in Schedule I of the Act. To the similar effect in another case of the same High Court in the case of Shio Partab Singh v. Tajamul Hussion. The Full Bench of the Allahabad High Court in the case of Firm Kanta Prashad v. Gulzari Lal, dealing with sections 19 and 20 of the Limitation Act and section 3 of the U. P. Temporary Postponement of Execution of Decree Act (X of 1937) while dissenting from the view taken by the Madras High Court, and the Oudh High Court viz. Sambayya v. Pedala Subbayya and Sukhnandan Prasad Shukla v- Raja Ahmed Ali Khan respectively, held that the correct interpretation of the word prescribed used in Section 19 is that the acknowledgment or payment should have been made before the claim had become time-barred and that is the prescribed period. But it may be noted that the Allahabad High Court in none of these cases had occasion to deal with section 48, Civil Procedure Code. The Judicial Commissioner, Nagpur in the case of Nandram v. Ranchhoddas, while dealing with the scope of section 19 of the Limitation Act observed that the word prescribed means prescribed by the schedule and not with reference to section 4. The Bombay High Court in the case of Bai Nemkore v. Masamalli held that sec. tion 19 of the Limitation Act requires that acknowledgment should be given before the expiration of the period prescribed for the suit and that period is determined by Schedule II of the Act. The Punjab High Court in the case of Aft. Biro v. Dulla Singh, while dealing with section 19 and Article 64 of the Limitation Act held that the words before the expiration of the period in section 19 cannot be interpreted to mean "before the expiry of three years the period prescribed by Schedule II to the Limitation Act," because section 26 of the Punjab Relief of Indebtedness Act expressly provides for the exclusion of the period during which an application for the conciliation of the debt remains pending. The Mysore High Court in the case of M. Janardhan v. 5. Narayan Naik,, while considering the scope of section 19 of the Limitation Act and section 52 of the Bombay Agricultural Debtors Relief Act, 1947, held that "the period prescribed" as mentioned in section 19 includes the period extended by virtue of section 52 of the Bombay Agricultural Debtors Relief Act, 1947.

(3.) The Madras High Court in the case of Somi Setti Seshajya Chetty v.R. Subbndu and Sambayya v. Pedda Subbayya, held that the word prescribed for a Suit in, section 19 of the Limitation Act means not only the period of limitation given in the schedule but also such further days as are given to persons by other sections of the Act including section 31 and hence in the case of suits referred to in the latter section and which were already time-barred when the Limitation Act of 1908 came into force an acknowledgment made within two years prescribed by section 31 can be availed of by the plaintiffs in such suits. But it may be noted that the first case was one relating to sections 19 and 31 of the Limitation Act and there is no reference to section 48, Civil Procedure Code. The other case was a case under section 28 (7)or the Provincial Insolvency Act and there is also no reference to section 48, Civil Procedure Code. In the case of Suryanarayana v. Venkataraju Varadachariar, J., who delivered the Judgment of the Full Bench of the Madras High Court, while dealing with sections 31, 19 and 20 of the Limitation Act, rejected the argument that the word prescribed must be understood as only meaning prescribed in the second schedule to the Limitation Act as not warranted by the language of the sections and as being opposed to the weight of authority. The learned Judge further rejected the narrow construction sought to be placed on section 31 and observed that there was no reason why a provision introduced for this purpose should be unnecessarily restricted in its scope or why the Legislature should be assumed to have intended that all persons holding such mortgage should immediately rush to Court, even though the mortgagors were prepared to make part payments or execute renewals. But it may be noted that in this case also, there is no reference to section 48, Civil Procedure Code. In the case of Chidambaram v. Vtnkatasubba Justice King, while considering the scope of sections 19 and 4, Limitation Act observed thus: