Behari Lall Mookerjee v. Mungola Nath Mookerjiee

Reference under section 617 of the Code of Civil Procedure from the District Judge of Hooghly.

The terms of the reference were thus stated by the District Judge:—

My locum tenens Mr. Brett, on the 23rd September, decided an appeal in a ??? suit. On the 25th idem, the appellant applied for a copy of the appellate ??? and decree. Owing to the intervention of the Dusserah vacation ??? the 26th September to the 27th October, both dates included), the copy ??? not ready for delivery till the 18th November. On the 16th December the Appellants, with this copy of judgment and decree, presented before me an application for the review of such judgment.

The question is whether this application is in time. Section 103 of Act VIII (B.C) of 1869 states that no application for a review of any judgment or order passed in any suit brought under the provisions of this Act shall be received by any Court after the expiration of 30 days from the date of such order or judgment. This language is clear; and would seem to require that a review to be in time must be put in within the 30 days next after the date of the judgment sought to be reviewed. In an analogous matter in the same Act (section 58), viz., the limitation in respect of execution of certain decrees, it has been held that the term therein mentioned, viz., three years, is absolute, and cannot be extended by operation of the general Limitation Act (6 W.R, Act X. Rul. 84.) So also it has been held (2 C.L.R, 643) that the general limitation law, notwithstanding it makes provision in article 110 of the Rent Schedule for the case of arrears of rent, does not apply to the case of land rent which is exclusively governed in matters of limitation as well as in all else, by the provision of the rent laws.

Had these been the only rulings known to me, I should feel no difficulty in the matter; but a judgment of the High Court, (Special Appeals Nos. 901 and 902 of 1877) not indeed published in any authorized report, but one which, being in a case from this Court, I think I am bound to defer to, has been brought to my notice. I annex a copy of it; it is of still later date than the ruling last above quoted, and it rules that the general Limitation Law does apply to this case of a review under section 103 at least.

The judgment of the High Court (1) upon the reference submitted, was as fellows:—

The Judge of Hooghly, in making this reference to the Court, and in observing on the precedents which have been cited before him or brought to his notice, appears not to have remarked the change in the law introduced by section 6 of the present Limitation Act. The corresponding section of the repealed Act IX of 1871 declared that, “when by any law, not mentioned in the schedule hereto annexed, and now or hereafter to be in force in any part of British India, a period of limitation, differing from that prescribed by this Act, is specially prescribed for any suits, appeals or applications, nothing herein contained shall affect such law,” so that when by any special enactment which continue in force, such as the Rent Act, any period of limitation differing from that prescribed by Act IX of 1871 were prescribed, then the provisions of Act IX were wholly inapplicable to such cases, and therefore the petitioner for review would be bound to present his application precisely within the time specified by the law in question. But section 6 of the present Act is in these terms:— “When by any special or local law, now or hereafter in force in British India, a period of limitation is specially prescribed for any appeal or application, nothing herein contained shall affect or alter the period so prescribed.” So that, according to this section, the period prescribed by section 103 of Act VIII (B.C) of 1869, remains unaltered, but the rules prescribed by the Limitation Act for computing the period of limitation are applicable. Therefore the party applying for review would be entitled to the benefit of the rules contained in section 12 of that Act. At the same time it is not apparent that any useful purpose has been answered by making this reference, because the application is to review the judgment of Mr. Brett, who was the Acting Judge of Hooghly, in the month of September last. The application is made to Mr. Grant in the month of November, and as it will appear from a perusal of the petition which we sent for that purpose, that the application rests upon supposed errors of judgment, it would seem that section 624 of the Procedure Code would bar the entertainment of the application by any Judge other than the Judge who delivered the judgment.