RAM AUTAR SAHU Vs. GULAB CHAUDHRI

JUDGEMENT

(1.) The suit out of which this appeal arose was for sale upon a mortgage dated the 10 of October 1894. The suit was instituted on the 6 of August 1907. The main plea in defence was that the debt had been paid off in part. The Court of first instance repelled the plea and decreed the suit on the 4 of December (sic). On appeal the lower appellate Court agreed with the learned Munsif that there had been no payment, but came to the conclusion that the suit was barred by limitation. The learned District Judge in his judgment remarks as follows:"The suit is beyond time unless it is exempted under Section 31 of the new Limitation Act. At the time it was filed originally twelve years had elapsed and the suit was withdrawn. But to bring the case under Section 31 it must have been withdrawn on that account. Now this suit was withdrawn because tartih was defective. Tartib is perhaps best rendered as the frame of the suit. It has nothing to do with limitation. It is stated by appellant and not denied by respondent that the defect was the omission of the name of Kober Ahir. Defendant's case was that he acted for his kinsman Kober and that Kober paid the cattle. Plaintiff did not sue Kober either in the original suit or in the suit as revised, but it is nevertheless quite probable that his reason for withdrawing was that he intended then to include Kober. Any how it is clear that the suit was not withdrawn on account of limitation, and Section 31 does not apply. I, therefore, allow the appeal and dismiss the suit as barred by limitation with costs." The plaintiff has preferred a second appeal to this Court, and the plea taken is that the lower appellate Court is in error in holding that the suit is barred by limitation. The law, as understood in these provinces prior to the ruling of their. Lordships of the Privy Council in Vasudev Mudaliar V/s. Srinivasa Pillai 20 M. 426 (P.C.) : 17 M.L.J. 444 : 11 C.W.N. 10C5 : 4 A.L.J. 625 : 6 C.L.J. 255 : 2 M.L.T. 333 : 9 Bom L.R. 1104, was that the limitation for a suit for sale upon a simple mortgage was 60 years. That ruling, however, laid down that such a suit was governed by 12 years limitation under Art. 132, Schedule II of the Indian Limitation Act. The plaintiff in the present case, in consequence of the above ruling of their Lordships of the Privy Council, was advised by his pleader to withdraw his suit. On the 9 of September 1907, he made an application in the following terms:There is a defect in the frame of the suit (tartib-i-arzi nalish), in consequence of which defect there is a chance that his claim may fail. He, therefore, under the provisions of Section 373, Civil Procedure Code, prays that his suit may be dismissed (Kharij kia jawe) with permission to bring a fresh suit. The Court of first instance on the 9 of September 1907, allowed the suit to be withdrawn with liberty to bring a fresh suit,

(2.) The new Limitation Act was passed on the 7 of August 1908. Section 31 of that Act came into force at once, and the rest of the Act was to come into force on the fir January, 1909. After the passing of the new Limitation Act, the plaintiff, on the 21 of September 1908, applied that under Section 31 of the new Limitation Act his suit might be restored to its original number, and the following order was passed on it: the case was withdrawn under Section 373 with permission to bring a fresh suit. Under Act IX of 1908, Section 31, the suit is restored to its original number, and 2 April, 1909 is fixed for the final hearing." No exception to this order was taken by the defendants. The learned Vakil for the appellant with reference to the above facts argues that as the suit was withdrawn under the provisions of Section 373 after the ruling of their Lordships of the Privy Council dated the 22 July, 1907 and prior to the passing of the new Act of Limitation, his client was entitled to the benefit of Section 31 of the new Act. In answer to this the contention of the learned Vakil for the respondents is that in order to entitle the appellant to the benefit of Section 31 of the new Limitation Act, the suit ought to have been withdrawn on the ground that 12 years (sic) of limitation applied to his claim, and that as the suit was withdrawn not on the ground of limitation but on the ground of a formal defect, Section 31 of the new Limitation Act has no application to the case. He further submits that on the findings arrived at by the lower appellate Court that one Kober who was a necessary party was not made a party to the suit, the decree of the lower appellate Court could be supported on the ground of Section 85 of the Transfer of Property Act. In my opinion there is no force in the last contention inasmuch as the suit has been dismissed by the lower appellate Court on the ground of limitation and not on the ground of want of necessary parties under Section 85 of the Transfer of Property Act. The first contention that in order to entitle the appellant to the benefit of Section 31 of the new Limitation Act the suit ought to have been withdrawn on the ground of 12 years limitation and not on the grounds of formal defect is, in my opinion, well founded.

(3.) The law before coming into force of the new Limitation Act was that (a) a plaintiff could withdraw the suit as a matter of right, such a withdrawal standing in no need of permission from the Court and (5) that he could withdraw the suit on the grounds specified in Sec. 373, Civil Procedure Code, with permission to bring a fresh suit. If the withdrawal was under (a), a second suit on the same cause of action was barred; but if the withdrawal was under (b), a second suit was not barred though under Section 374, Civil P. C., it was subject to the law of Limitation.