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TMI Blog1950 (4) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... he appellant was that the Amending Act applied to the suit and the endorsements would be sufficient within the meaning of Section 20 as amended by it. Both the Courts held that the appellant could not rely upon the Amending Act, because the claim to recover the amounts due under the suit promissory notes became barred by limitation prior to the coming into force of the Amending Act and dismissed the suit as barred by limitation. 2. The case is directly covered by the decision of Viswanatha Sastri J. in Mangapathi Naidu v. Krishnaswami Naidu , AIR1950Mad762 . An unreported decision of Somasundaram J. in Hanumayamma v. Venkatanarasimharao , C. R. P. 148 of 1947, dated 11-11-1949 is to the same effect. Satyanarayana Rao J. before whom the appeal came on originally for hearing, however, thought that as the question raised was of sufficient importance and of frequent occurrence there should be an authoritative decision by a Division Bench. 3. We agree with Mr. N. Sivaramakrishna Aiyar, the learned advocate for the appellant, that the law of limitation applicable to a suit or proceedings is the law in force at the date of the institution of the suit or proceeding unless there is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermined with reference to the provisions of the later statute of 1877, though the right was barred by the earlier statute of 1871 thus: It is clear that on 1-4-1873, the plaintiff's suit was barred by limitation under the Act of 1871, and the Act of 1877 could not revive the plaintiff's right so barred, a point which was indeed decided in regard to the Limitation Act of 1859 and 1871, in the case of Appasami Odayar v. Subramania Odayar , 12 Mad. 26: 15 I. A. 167 . In Khunnilal v. Gobind Krishnanarain , 33 ALL, 386: 38 I. A. 87 dealing with a similar point, their Lordships said: No suit could be brought, even if the enactments referred to above had permitted it, to enforce the right after the lapse of 12 years from the time the cause of action arose' (Section 1, Clause 12 of Act XIV [14] of 1859). Nothing in Article 142 of Act IX [9] of 1871 or in Article 141 of Act XV [15] of 1877 could lead to the revival of a right that had already become barred. In Sachindra Nath v. Maharaj Bahadur Singh , 49 Oal. 203: A. I. R. 1922 187 One of the questions to be considered was which of the two Limitation Acts, that of 1877 or that of 1908, applied to the case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thout resorting to an action. Instances of the application of this doctrine are to be found in its application to several branches of the law. A barred debt is a good foundation for a written promise to pay signed by the party liable to be charged therewith. Even if the claim against the principal debtor is barred, the surety is not discharged on that account only. An executor or administrator may deduct time-barred debts against the legatees. They can even pay time-barred debts except when they have been adjudicated upon in Courts. A father can validly alienate joint family property to pay his barred debt, The fundamental principle underlying all these instances is that though remedies are barred, rights are not extinguished. But it does not follow that be cause, rights are not extinguished, such rights can be deemed to be enforceable in a Court of law. In respect of claims to eights to or interests in Immovable property, besides the law of limitation, there is also the law of extinctive prescription which comes into operation. In such cases there is a negative as well as a positive aspect. By the lapse of time, one person loses his right to enforce his claim to such property. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... question there arose of reviving a barred claim. The claim to enforce the mortgage was quite alive when the new Act came into force and, therefore, it was the new Act which was applied. 8. There are two decisions of the Patna High Court which undoubtedly support the appellant's contention, but when the reasoning is analyse, it will be apparent that they cannot be considered as useful precedents. Baleswar v. Latafat , 24 Pat. 249 : A. I. R. 1915 pat. 368, is the earlier of the two. The learned Judges did not really meet the point raised on behalf of the respondent before them that the right of the plaintiff to institute a suit on the handnote was extinguished before the amending Act had come into force, Manohar Lall J., who delivered the judgment of Bench said : ''Now here the right of the plaintiff to recover the debt had not become barred when Act XVI [16] of 1942 was passed. It is difficult to follow this statement. But if this were so then of course the new Act would apply. Apparently, what the learned Judge meant was that though the debt had become barred, it had not ceased to exist We have already held that this doctrine does not have any bearing on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have been barred by time when the amending Act came into force. With great respect to the learned Judges, we desire to point out that the law of limitation as such only deals with remedies to enforce rights in a Court of law. If therefore the remedy was gone when the amending Act came into force, there is no principle on which it could be held that the remedy again became available. 10. An earlier decision of the Calcutta High Court in Mahesh Lal v. Basant Kumari , 6 Cal. 340 : 7 C. L. R. 121 does certainly support the appellant's contention based upon the distinction between remedy and right. But this case has been adversely criticised by Mitra in his Commentaries on Limitation Act (1911 Edn. Vol. 1 at pp. 291 and 892) and does not appear to have been followed on this point. 11. Mr. Sivaramakrishna Aiyar also relied on two early cases of our Court. The first of these is Vaha Thamturatti v. Vira Rayan , 1 Mad. 228, of the two Judges who decided that case, Morgan C. J. did not think that any question of limitation arose as the lender of the money was constituted a trustee. But he observed : If it had been necessary in my judgment to consider the operation of the ne ..... 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