C GANAPATHI MUDALIAR Vs. NKRISHNAMACHARI

JUDGEMENT

(1.) The question is whether the orders of the Lower Court dismissing these two petitions by the appellants as out of time are correct. Of those petitions C.M.P. No. 90 of 1920 was by the appellant for the setting aside of a court sale held on 19-9-1887 in execution of a mortgage decree and for a fresh sale on an amended proclamation. He also asked for an amendment of the execution petition of his opponent, the decree holder, by bringing it into conformity with the decree under execution. In C.M.P. No. 91 of 1920 he asked leave to amplify this prayer by asking the court to "order, if, necessary a fresh proclamation of sale, giving correct information as to the interests of the various defendants with a full description of the nature and value of the properties." There was also a prayer for leave to withdraw the portion of paragraph 20 in C.M.P. No. 90, in which he declined to proceed against 5 to 14th defendants, transferees of the decree holders, purchasers. This last prayer has been subjected to special objection. But the amendment was asked for before any prejudice could have arisen and it would have raised no new question of limitation. This objection is therefore groundless.

(2.) We accordingly have to deal only with the question of limitation, as raised by the earlier C.M.P. No. 90, which was presented on 24-9-1919, over 30 years after the sales sought to be set aside. The explanation for the delay is first that, as the appellant alleges, owing to fraud he was kept from knowledge of his right to apply until February 1907. That allegation is disputed and has not been dealt with by the lower court. But it is not necessary for us to deal with it, as, even if it is accepted, the applications are still, in our opinion, out of time. Secondly the appellant contends that, the period applicable to his application is three years from February 1907. Thirdly, that he is entitled to exclude from the period, the time taken by him in prosecuting in good faith, a suit, which began on 16-11-1907 and ended with the judgment of the Judicial Committee on 14-12-1917 when his suit was, it is said, held to be barred by Section 244 of the previous Code (Civil P. C., 1882) corresponding with Section 47 of the present Code (Civil P. C. 1908). It is not disputed that, if both these contentions are sustained, these petitions will be in time on the assumption that the starting point is some date in February 1907. In our opinion neither of them can be sustained. It will however be sufficient if either of them fails.

(3.) It is important to decide first what is the law applicable, for the present Law, Act IX of 1908, came into force on 1-1-1909. It is admitted that the appellant's third contention already stated is, apart from any other objection to it, unsustainable, if the previous Act of 1877 applies, because Section 14 of that Act allowed an applicant the time spent only in making another application, not in conducting a suit, whereas under the present law, allowance can be claimed for the time spent in prosecuting another civil proceeding, whatever its character. This point can at once be decided in appellant's favour. For all the authorities regard the law of limitation as a law of procedure and lay down that laws of procedure have restrospective effect. This rule is not the less binding, because authority recognizes exceptions to it in particular cases, and appellant desires by one of his alternative contentions to avail himself of one of those exceptions and to claim 3 years for his cause of action under Art. 178, Schedule II of the former Act (Indian Limitation Act 1877) instead of 30 days under Art. 166 of the present Act (Act IX of 1908). For there is neither reason nor authority for holding that in the argument to be considered anything but an exception or anything obliging the party to make an election between the application of one Act and the other, as a whole, is in question. The exception of which, the appellant proposes to avail himself, is, he contends recognised in the reference in Rajah of Pittapur V/s. Venkatasubba Rao (1915) I.L.R. 39 Mad. 645 by Wallis, C.J. to cases, in which the application of the new law would absolutely destroy the plaintiff's right of suit, which was in existence when it came into force; and in the dictum of Kumaraswamy Sastry, J., that "both on principle and on the balance of authority the new law ought not to be applied so as to kill causes of action which were alive on the date of its enactment", and also in the endorsement by Wallis, C.J., and one of ourselves of these references in Vaidianatha Aiyar V/s. Govindaswamy Udayar (1921) 13 L.W. 522. Certainly, if the fact that the parties right is destroyed by the application of the new law is alone to be decisive, then the appellant must be allowed to benefit by the exception thus recognised and to rely on the former Act. For, if Section 14 is assumed applicable to his case, a point we return to, he certainly had time to proceed, of which the new Act deprived him when it came into force on 1-1-1909.