ABDUL RAHMAN Vs. AMIR ALI

JUDGEMENT

(1.) The question submitted to us are the following: (i) "Whether when the name of an assignor is removed from the record of a suit, and that of an assignee is substituted in its place, the provisions of Section 22 of the Limitation Act are applicable? (ii) Whether the case of Harak Chand V/s. Deonath Sahay (1897) I.L.R. 25 Calc. 409, or that of Suput Singh V/s. Imrit Tewari (1880) I.L.R. 5 Cal. 720 has been correctly decided?" I think that the first question ought to be answered in the affirmative, and that as between the two oases referred to in the second question, the decision in Harak Chand V/s. Deonath Sahay (1897) I.L.R. 25 Calc. 409 ought to prevail. If a person who has not been on the record is substituted as a plaintiff in the place of the original plaintiff under Section 372 of the Civil P. C., the person so substituted must be taken to be brought on the record subject to the law of limitation applicable to the case. There is nothing in Section 372 of the Code to exclude the operation of Section 22 of the Limitation Act, and if we look at the latter section we find that if a new plaintiff is substituted, which must mean a person who has not before been a plaintiff "the suit shall, as regards him, be deemed to have been instituted when he was made a party." The language of the section is perfectly clear and unequivocal. The only exception is that contained in the two provisos which refer to the legal representatives of a deceased plaintiff or defendant, as the case may be. There is no exception in the case of an assignee. By the provisos the Legislature has pointed out that the legal representative of either a deceased plaintiff or defendant shall not be regarded as a new plaintiff or defendant: this, by implication, in dicates, that in all other cases the person substituted is to be regarded as a new plaintiff. As the case of an assignee does not fall within the provisos, I think that Section 22 of the Limitation Act is applicable, and that the question should be answered in the manner I have indicated. Harington J.

(2.) In this case a suit was instituted on a mortgage bond 11 days before the expiry of the period of limitation.

(3.) Long after the period of limitation had expired, the plaintiff assigned his rights under the mortgage bond to Dr. Abdul Rahman and Shaikh Yad Ali and their names have been substituted for that of the original plaintiff which has been struck off the record.