MOHAMED NAQI Vs. HARGU LAL

JUDGEMENT

(1.) IN this case one Kamal Uddin brought a suit against Mohammad Naqi on behalf of whom the present plaintiff Lala Hargu Lal stood surety for Mohammad Naqi, that the latter would pay the price of the coal sold to him by Kamal Uddin. Kamal Uddin obtained a decree against the present plaintiff as surety. IN order to obtain a review the plaintiff deposited the amount of the decree under Section 17 of the Provincial Small Cause Courts Act. He made the deposit on the 5 of September, 1919. The application for review was dismissed and the creditor withdrew the money on the 21 of April, 1920, Subsequently the plaintiff brought the present suit to. recover the money from his principal filing his suit on the 20th of April, 1923. A plea was taken in the Court of Small Causes that the suit was barred by limitation under Art. 81 of the Limitation Act. That article allows a period of three-years from the date "when the surety pays the creditor." It is urged that the date of the payment to the creditor was the 5 of September, 1919, i.e., the date of the-deposit and the defendant has relied on the case reported in Yinka Supaya V/s. Maung Kin (1920) 3 U.B.R. 261. The plaintiff urged and the lower Court accepted the plea that-limitation commenced to run from the- 21 of April, 1920, and held that the suit was within time. It is open to argument that the date on which the creditor was-paid was the date on which the application for review was actually dismissed because from that date the creditor was entitled to withdraw the money but this at least is quite certain that he was note entitled to withdraw the money immediately it was deposited and before the-application for review had been dismissed. The plea therefore as urged by the defendant could certainly not be sustained. Neither party can tell me on what date the application for review was dismissed; and failing is make good his plea that the; date of deposit was the date from which limitation commenced to run, the defendant- applicant here asks me to send for the record in order to ascertain the date on which the application for review was. dismissed. On the other hand, the plaintiff- opposite party here urges that this Court should not interfere in civil revision upon a question of limitation and has referred me to Baghunath Sahai V/s. The Liquidator of the Himalaya Bank, Limited (1893) 15 All. 139 and Sarman Lal V/s. Khuban (1895) 17 All. 422. The latter case is not so clearly in point as the former, for it is not clear that in the latter case the question of limitation did not depend upon a question of fact as-well upon a question of law. The earlier case is however directly in point. For the opposite party I am referred to Lt. Col. J.G. Turner v. Jagmohan Singh (1905) 97 All. 531. Whatever else that case may have decided it certainly did not decide that the Court should interfere on a technical ground where substantial justice had been done. It is perfectly clear in this case that whether the period of limitation should be held to run from the date when the application for review was dismissed or from the date when the creditor withdrew the money, the debt which has been sued for in this cage was undoubtedly due from the principal to the surety and unless this Court was to hold that it had no discretion whatever it is indubitably a case in which a discretion should be exercised in favour of the opposite party in this case. I therefore decline to interfere and dismiss this application.