DILAWARKHAN Vs. HAZARILAL

JUDGEMENT

(1.) THE facts which have given rise to this revision are that one Kalyan Vijay Jati advanced some money to the defendants -applicants who acknowledged the same on 22 -6 -53. Kalyan Jati died on 28 -8 -55 without any heir, On 1 -2 -58, the Additional District Judge Shajapur granted letters of administration of the property and credits of Kalyan Jati to Shri Hazarilal Gupta and granted permission to him to file the suit against the applicants on 9 -2 -59, Accordingly on 27 -4 -59 the suit was filed by Shri Hazarilal as administrator. Various objections were raised the most important of which and subject for consideration is a plea of limitation which has been held against the defendants. The Court has granted a decree in favour of the administrator. The defendants have now come up in revision.

(2.) THE acknowledgment was on 22 -6 -53 and the suit would clearly be barred by time as it was filed on 27 -4 -59. But the learned counsel for the plaintiff submitted that Shri Gupta was appointed as an administrator; that on 28 -8 -55 Shri Kalyan Jati died and permission to institute the suit was given to Sri Gupta on 9 -2 -59. The suit was filed on 27 -4 -59. Under S. 17 of the Limitation Act, limitation therefore starts from 9 -2 -59 and the suit is therefore within time.

(3.) A bare -reading of the section would indicate that the plaintiff cannot take advantage of the same. For application of this section cause of action must arise after the person dies. When a legal representative comes into existence or is appointed he can take advantage of the section only if the cause of action has not arised during the life time of the person of whose legal representative he is appointed. The suit is based on acknowledgment on 22 -6 -53 and the cause of action had arisen on that day.