SUMERMAL Vs. BIRDHICHAND

JUDGEMENT

(1.) THESE two cases have been referred by a learned Single Judge to a Division bench for decision as an important question of law which is common to both of them arises therein. The learned Judge has formulated the question in these words: "whether an acknowledgment or part payment to be good and valid must have been made within the period prescribed by the law of limitation which was in force at the date the suit we brought, or it would also be good if it was made within the period of limitation which was in force at the time the acknowledgment or part payment was made or even if such acknowledgment or part payment was made during the special period of limitation permitted by subsequent Acts that is either under Section 4 of the Marwar Limitation Act of 1949 or under Section 9 of the Rajasthan Limitation Act, (Adaptation) Ordinance of 1950 or section 30 of the Limitation Act as applied to the State by Part B States laws Act 1951. "

(2.) HAVING formulated the question, the learned Judge has referred the entire case because there is no other point of dispute between the parties except the question of limitation.

(3.) WE may briefly give the facts of the two eases to understand the implication of the question referred to us. In Civil Regular Second Appeal No. 313/1955, (hereinafter called the appeal), the facts are these. The Khata, out of which the suit has arisen, was executed on 9-10-1941. At that time, the Marwar Limitation Act, 1945, (hereinafter called the 1945 Act)was in force, the period of limitation in that Act for such suits being six years. There was part payment on 9-4-1947. Then from 27-3-1949 came the Marwar limitation Act, 1949 (hereinafter called the 1949 Act ). By this Act, the period of limitation in certain class of cases, including this, was shortened as compared to the 1945 Act and there was a saving clause in this Act, namely Section 4. Then on 25-1-1950 came the Rajasthan Limitation Act, (Adaptation) Ordinance of 1950 (hereinafter called the 1950 Act ). It provided a saving clause in Section 9 to cover cases where the period of limitation was shortened as compared to the earlier Acts of various Covenanting states repealed by it. Finally came the Indian Limitation Act which was applied by the Part B States Laws Act of 1951 (hereinafter called the 1951 Act ). This Act came into force on 1-4-1951 and contained a saving clause in Section 30 of the Limitation Act as applied by it. A second part payment was made on 28-111951 and the present suit was brought on 11-8-1953. The question that has arisen on these facts is whether the suit was within time on the date on which it was brought.