HIRALAL KANHAIYALAL Vs. KRIPALSINGH SUNDERSINGH

JUDGEMENT

(1.) 1. The defendant executed a promissory note in favour of the plaintiff for a sum of Rs. 300 borrowed on 6th January 1927, and the plaintiff brought a suit, in the Court of Small Causes for the recovery of that sum with interest on 16th February 1931. On 8th November 1929, the defendant brought a suit against the plaintiff alleging that the whole amount had been repaid with interest on 8th December 1927 and that, the plaintiff had refused to pass a receipt or to return the promissory note and asked for a declaration that the promissory note was satisfied and for an injunction restraining the plaintiff from suing the defendant on the basis of that note. The defendant's suit failed and, the plaintiff now asks that the time taken in defending that suit, 13 months and eight days from 8th November 1929 until the 15th December 1930, should be excluded in computing the period of limitation. It will be noticed that if this period is excluded the plaintiff has filed this suit on the very last day permitted. The plaintiff had also contended that under Section 19, Lim. Act, he is entitled to calculate the period of limitation from the date on which the defendant admitted liability in the suit which he had brought. This contention was disallowed by the learned Judge, but, on the authority of Nrityomoni Dassi v. Lakhan Chandra Sen AIR 1916 P C 96 he allowed under Section 14, Lim. Act the time taken in the previous litigation between the parties to be deducted, held the plaintiff's suit within time, and on the merits passed a decree in his favour. In revision it is now contended by the defendant-applicant that no such period should have been allowed to the plaintiff as the suit is well beyond time.

(2.) THE plaintiff-non-applicant, besides resisting this contention, has attempted to support the decree of the lower Court by urging the consideration under Section 19, Lim. Act, which that Court has rejected. This point may be disposed of immediately. The acknowledgment contemplated under Section 19 must be an acknowledgment of liability and no such acknowledgment was ever made by the defendant, who pleaded expressly that on 8th December 1927 he had repaid the whole amount, and even if this might be taken as the date from which limitation ran the suit will be time barred. On the contention of the applicant that Section 14, Lim. Act, has no application to the case of a defendant defending a suit I am of opinion that the application must succeed. The learned Judge of the Small Cause Court in relying on the Privy Council decision in Nrityomoni Dassi v. Lakhan Chandra Sen AIR 1916 P C 96 has put far too wide an interpretation on their Lordships decision when he states that: it has been held by the Privy Council that a defendant who had been prosecuting a suit with due diligence can get the time occupied by that suit excluded.

(3.) THE other dispossessed brother, although a defendant, supported the plaintiff and himself claimed a third share and issue was actually raised as between these two co-defendants whether the one supporting the plaintiff was entitled to a share: it was held that not only was the plaintiff entitled to a share but the defendant who supported him was also entitled to a share. The result was that there was a decree passed in this defendant's favour which was capable of execution. In appeal, some ten months later, this defendant's claim was negatived on the ground that no decree could be passed in his favour in what was really an ejectment suit and he was referred to a suit for partition which he brought. It was held on appeal by the Calcutta High Court that for the purposes of limitation he was entitled to exclude the ten months between the passing of the decree in his favour and the reversal of that decree in appeal. It is to be noted that the exclusion of this period was all that was necessary to bring him within the limitation of 12 years and that the learned Judges who reversed the decision that the plaintiff's claim was time barred based their decision on the fact that the plaintiff had a decree which, so long as it stood undischarged, was susceptible of execution and that so long as that decree subsisted the plaintiff was incapable of bringing a suit on the same question. The applicability of Section 14, Lim. Act, was however gravely doubted and, although it was pointed out that the plaintiff who had been a co-defendant in the original suit should really have been arrayed as the plaintiff therein and obtained a decree as if he were a plaintiff, that argument was not made the basis of the decision.