S P S SUBRAMANIAM CHETTIAR BY AUTHORISED AGENT K P SUBRAMANIA AIYER Vs. MARUTHAMUTHU BY AUTHORISED AGENT KARUPPANNA PANDITHAN

JUDGEMENT

(1.) This second appeal arises out of O.S. No. 70 of 1940 in the Court of the District Munsif of Namakkal, a suit upon a foreign judgment. The question is whether the suit was barred by limitation. The plaintiff in the suit is the appellant. The defendant who was a permanent resident of Kalappanickenpatti village within the jurisdiction of the Court of the District Muilsif of Nemakkal and temporarily residing at Muar in the Federated Malay States had borrowed 1356 dollars from the plaintiff on a promissory note. The plaintiff filed C. S. No. 81 of 1930 in the District Court of Muar and obtained a decree on 21 July 1930. Various payments were made by the defendant towards the discharge of this decree, the last being on 12 June 1938. On 10 January 1940, a sum of 786 dollars 12 cents was found due and on 28 February 1940 the plaintiff filed the present suit to enforce the foreign judgment. Art. 117, Limitation Act, provides a period of limitation of six years from the date of the foreign judgment, and, as the foreign judgment was pronounced on 21 July 1930, the suit was on the face of it barred. The plaintiff, however, contended that limitation was saved by reason of the fact that under Section 13, Limitation Act, he was entitled to deduct the period during which the defendant was residing out of British India and he also argues now, although it is not clear that this argument was put forward in the lower Courts, that in any case limitation will start to run from the date of the last payment in discharge of the decree of the foreign Court, namely, 12 June 1938. The learned District Munsif held that the suit was in time and passed a decree accordingly. On appeal, however, his decree was reversed by the District Judge of Salem, and the suit was dismissed.

(2.) The District Munsif considered that the plaintiff was entitled to deduct the period during which the defendant was absent from India, which admittedly was ever since the suit in the Muar Court had been filed. He referred to the decision of a Bench of this Court in Rathina V/s. Paekiriswami , but distinguished it from the present case. The District Judge rather surprisingly made no reference to Rathina V/s. Paekiriswami and although, in my opinion, his decision was right, it is not easy to see on what grounds he based it. He say only that it is extremely doubtful whether Section 13, Limitation Act, was ever intended to apply to a case like the present where both the parties were absent throughout from British India and where the cause of action arose and was prosecuted in a foreign Court.

(3.) In my judgment Rathina V/s. Paekiriswami is clear authority for the view that the provisions of Section 13, Limitation Act, are only attracted when the cause of action has arisen in British India. In distinguishing the case, the learned District Munsif has referred only to one part of the judgment. The question was not merely whether the plaintiff in the suit in question was entitled to the benefit of Section 14 but also whether he was entitled to deduct the period during which the defendant had been absent from British India. I am bound by the decision in Rathina V/s. Paekiriswami and no purpose is served by considering whether other High Courts have or have not taken a different view.