Adami, J.:— (after stating the facts set out above, proceeded as follows): Mr. Gangacharan Mukherji as argued this appeal with great ability on behalf of in the defendants-appellants. The main part of his argument has been devoted to the question of limitation. The three questions which arise under this head are: Whether section 12 of the Chota Nagpur Encumbered Estates Act, clause 6, saves the suit from being barred by limitation, secondly whether if section 12, clause 6, does not apply, section 15 of the Limitation Act applies; and thirdly, whether there was such acknowledgment by the defendants as would save the suit from being barred by limitation. Mr. Mukherji has taken us through the sections of the Encumbered Estates Act and his argument is that the first clause of section 3 of the Act is an absolute bar to all proceedings and suits after the publication of an order under section 2 of the Act. He points out that the sixth clause of section 12 refers only to a release covered by clause 2 of the section, that is to say
“if the Commissioner at any time before a scheme has been approved by him under section 11 thinks that the provisions of this Act should not continue to apply to the case of the holder of the said property or his heir.”
In the present case the estate was released after approval of the scheme by the Commissioner, and therefore the sixth clause cannot apply and there can be no revival of claims. His contention is that the first clause of section 3 which is the bar to all proceedings still holds good even though the estate has been released because sub-clause 6 of section 12 does not apply in the circumstances of this case. There is no doubt, as has been often remarked, that the Chota Nagpur Encumbered Estates Act, 1876, is inartistic in its drafting. That this has been recognised with regard to such circumstances as we find in the present case is shown by the amendments made by the Legislature by the Bihar and Orissa Act VIII of 1922, whereby in section 4 the following words have been added to the second clause of section 12:
“Or if after the scheme has been so approved an application is made under section 11B for the relinquishment of the property.”
The framers of the Act do not seem to have contemplated that even when a scheme has once been approved and has to be carried into effect under section 11, there could be a release under any circumstances other than those mentioned in the first three clauses of section 12, and as the Act stood before the amendment of 1922 the strict wording of the Act seems to show that no reviver was contemplated in circumstances other than those mentioned in clause 2 of section 12. The learned Subordinate Judge has, I think, taken the right view in holding that too strict an interpretation cannot be placed on section 12.
Section 3, it is true, states that on the publication of an order under section 2 all pending proceedings shall be barred and all processes, executions and attachments for, or in respect of, debts and liabilities shall become null and void, whereas the second and third clauses are limited in their operation to the period during which such management continues. It is contended that save in the case mentioned in section 12, clause 6, the bar shall be absolute and that no process or execution or attachment can, after the publication of an order under section 2, be served or made. But surely when the order itself is cancelled by a subsequent notification, the effect of the first clause of section 3 disappears. It could never have been in the contemplation of the Legislature that the mere approval by the Commissioner of a scheme should for ever deprive all creditors of redress. But I think it is quite clear that even were it to be held that as the Act is drafted no revivor of proceedings is allowed, the provision of section 15 of the Limitation Act must apply. Though the word “bar” is used with regard to pending proceedings in clause 1 of section 3, its real meaning is clearly that they should be stayed, for clause 6 of section 12 shows that in certain circumstances proceedings may be revived. In the present case we have not to do with proceedings which were pending at the time the notification was published; the question is whether any process can issue or any suit be instituted after the order of release. Clause first of section 3states that processes, executions and attachments shall become null and void on the publication of an order under section 2; after that order has been cancelled, there is no bar to any process, execution or attachment; there has really been merely a stay. The order under section 9 Ringing the estate under protection was a vesting order staying all proceedings, and under section 15 of the Limitation Act I am satisfied that there should be a revivor, the period of protection being excluded. I would refer to the case of Raja Jyoti Pd. Singh Deo…Plaintiff v. Ranjit Singh…Defendant Opposite Party.. It is true that there Das, J., did not consider the difficulty which we have now before us with regard to the wording of clause 2 of section 12; but it may be that in that case the point did not arise. The general principles however are given as to the right of revivor. I am quite satisfied that the plaintiff is entitled to exclude the time during which he was barred from suing on the debt due to him by reason of the estate being under protection.
Mr. Mukherji has argued that after the manager had examined the claim and had judicially determined the debt under section 8 of the Act, the plaintiff could have sued the manager within three years of the determination of the debt; but I think that this contention cannot in any way be upheld for under the wording of clause first of section 3 any such suit would be barred. Secondly, it is contended that when the manager heard the claims and determined the debt and thereafter drew up a scheme, he was in fact contracting with the plaintiff to pay the debt in a certain manner and within a certain time; and when in 1910 which was the last date of payment under the scheme, he had failed to pay to the plaintiff, the plaintiff might have sued him on the contract. But it is clear that in a case like this there was no contract between the manager and the plaintiff. The manager determined the scheme without inference to the wishes of the plaintiff.
Thirdly, it is argued that, even if a suit in respect of such determined debt was barred during the period of management, what would revive after release from management would be the debt determined by the manager and not the original debt. In the present case the manager determined the original debt to be due but decided that he would pay interest at 6 per cent, and not at 12 per cent, per annum. After the release the whole scheme came to nothing and anything arranged in the scheme would not affect the revival of the original debt at the original rate of interest. Mr. Mukherji would have us hold that the determination of a debt by the manager is a judicial proceeding and his decision as to what the debt is amounts to a decree. But here the original and determined debts are exactly the same and so the point does not arise. I must hold that the plaintiff was entitled to exclude the period, of management. It is certainly hard on the defendants that their debts should have been allowed to accumulate for so long a time as 19 years; but it has to be remembered that through the protection of the Act the defendants' property has been preserved. The plaintiff has also suffered in not being able to obtain repayment of the debt during so long a period.
The debt would be barred, even if the period of management were excluded, if the defendants had not in 1904 acknowledged their indebtedness. The Schedule to their application in 1904 cites and admits the debt. That application is signed and verified by both the defendants. Again when the debt was examined by the manager under section 8 the defendants both admitted it, and in his written statement defendant no. 1 acknowledged that he admitted the debt before the manager. These acknowledgments save the claim from the bar of limitation.
With regard to the passing of consideration the learned Subordinate Judge has I think correctly found that consideration passed. The defendant has brought no evidence to show that he gave hand-notes in favour of his relatives for the purpose of obtaining money from the manager. As to the liability of defendant no. 2, it is clearly shown I think, that he joined with defendant no. 1 in conducting the litigation. Furthermore he joined with defendant no. 1 in presenting the application for protection and in that application admitted his joint indebtedness. Defendant no. 2 failed to prove that he was separate from defendant no. 1.
With regard to the legal necessity, defendant no. 1 himself says that there was litigation over Lot Chandu which continued for a long time. It is argued that there is no evidence that the plaintiff made enquiries as to the necessity of the loan; but it is clear that necessity was pressing, because the litigation was proceeding. I can see no reason to differ from the finding arrived at by the learned Subordinate Judge, and I would therefore dismiss the appeal with costs.
Kulwant Sahay, J.:— I agree.
Appeal dismissed.