N.A St. Chidambaram Chettiar v. Venkatasubba Naik

The question raised in this Second Appeal is one of limitation. The suit promissory note was executed on the 12th June 1923. There was an acknowledgment on the 22nd June 1923 and a second acknowledgment on the 27th June 1926. On that date the Court in which the suit should have been filed was closed. It was closed on the 22nd June and reopened on the 28th June 1926. The suit was filed on the 6th August 1929. Both the Courts below have held that the suit was barred by limitation.

The argument in appeal is that S. 19, which is the section of the Limitation Act which has to be applied in this case, deals with the period prescribed by the Act as a whole for the filing of a suit and that when the Act as a whole is read, that period will be seen to expire not on the 22nd June 1926 but only on the 28th June 1926 when the Court re-opened and therefore three years can be calculated afresh from the 28th June 1926. In other words to put the argument very succinctly, it is this, that under S. 19 the period prescribed is to be calculated not only from all the articles and other sections of the Limitation Act but also by including the extension which is given by S. 4. It seems to me that this argument is untenable and obviously appears to be untenable from a mere perusal of the two sections concerned. S. 4 runs thus: Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens. S. 19 reads as follows, omitting unnecessary words: Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability has been made in writing, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. It will be clear from S. 19 that it is necessary that the acknowledgment should be signed before the expiration of the period prescribed. It is equally clear from S. 4 that section itself can come into operation only after the period of limitation prescribed has already expired. In this case therefore the period of limitation prescribed expired on the 22nd June 1926, but by reason of the provisions of S. 4 a special right was given to the plaintiff to file his suit on a later date when the Court reopened. It is impossible in my opinion to give a different meaning to the expression “expiration of the period prescribed” in S. 19 from the meaning which that expression bears in S. 4. True that I have been referred to one case in Allahabad decided by a single Judge in which upon facts similar to the present it has been held that S. 19 can also include the period extended by S. 4 [Abdul Ghani…(Defendant); v. Chiranji Lal…(Plaintiff).*,] but the weight of authority is decidedly on the other side. There is a Bench decision by the Bombay High Court reported in Bai Hemkore v. Masamalli, there is a decision of the learned Chief Justice of the Calcutta High Court in Debendra Nath Roy v. Kartic Prasad Das*, and finally there is this very significant sentence in the judgment of the Privy Council reported in Magbul Ahmad v. Pratap Narain Singh. Their Lordships of the Privy Council are there discussing the meaning of S. 4 and what they say is this:

“what the section provides is that where the period prescribed expires on a day when the Court is closed, notwithstanding that fact an application may be made on the day when the Court re-opens, so that there is nothing in that section which alters the length of a prescribed period.”

If that is so, the prescribed period, as I have already said, clearly expired by the 22nd June 1926 and the endorsement which was made only on the 27th June 1926 cannot possibly come within the provisions of S. 19.

In the result, the appeal fails and is dismissed with costs.

Leave to appeal is refused.

N.R.RAppeal dismissed.