T S SUBBA AIYAR Vs. SUSUBBA AIYAR

JUDGEMENT

(1.) We accept the findings of fact arrived at by the lower Appellate Court.

(2.) Mr. Govindaraghava Aiyar, for the Respondent, contended that a suit for the relief claimed by the plaintiff, though it might have been brought till 31st December 1908, could not be brought on or after 1st January 1909, as the new Civil Procedure Code and the new Limitation Act of 1908 made ail order passed on a claim petition conclusive unless set aside within one year, and he refers to Order XXI, Rule 63, of the new Civil Procedure Code and Article 11 of the new Limitation Act. The new Limitation Act Article 11 refers to an order passed under the Civil Procedure Code of 1903 and neither Section 158 of the Civil Procedure Code nor Section 8 of the General Clauses Act constrains us to read the phrase the Code of Civil Procedure 1908" in Article 11 as including a reference to the earlier Civil Procedure Cede of 1882. The order of 1905 which is relied upon as conclusive (because not set aside within one year) need not have been set aside under the old law (as it was not passed after investigation) and Article 11 of the old Limitation Act, 1877, did not, therefore, apply; nor need it be set aside under the new Code, as it was not ail order passed under the new Code and Article 11 of the new Limitation Act refers only to orders passed under the new Code. In this view, it is unnecessary to consider the question whether the provisions of the new Civil Procedure Code and the new Limitation Act were intended to and could take away the right of suit under the general law which plaintiff had till 31st December 1908 see, however, Rajah of Pittapur v. Gani Venkat Subba Row 30 Ind. Cas. 94 29 M.L.J. 1 : 18 M.L.T. 67 : 2 L.W. 661 : (1915) M.W.N. 547, and Gopeshwar Pal v. Jiban Chandra 24 Ind. Cas. 37 : 18 C.W.N. 804 : 19 C.L.J. 549 : 41 C. 1125. The Privy Council case, Lala Soni Rami v. Kanhaiya Lal 19 Ind. Cas. 291 : 35 A. 227 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 17 C.L.J. 488 : 15 Bom. L.R. 489 : 25 M.L.J. 13 : 40 I.A. 74, was decided on the ground that an acknowledgment did not create any" title in the person whose right was acknowledged and no question of taking away any right or title arose by reason of a change of the law in respect of what kind of acknowledgment will afford a fresh starting point for limitation.

(3.) In the result, we modify the decree of the lower Appellate Court by giving relief to the plaintiff as regards the 3rd schedule properties thus restoring the Munsif s decree.