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TMI Blog1907 (7) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... s 12 years, as provided in Article 132 of the second schedule to the Indian Limitation Act. The suit is, therefore, apparently barred by limitation. There was a contention raised in the first Court that there had been a payment of a certain quantity of rice by the defendants on account of interest. But this alleged payment was found to be unproved; and, moreover, this payment was alleged to have taken place within one year of the date of the bond. There is, therefore, nothing to prevent the application of Article 132 of the second schedule of the Limitation Act to this suit. 3. There is, no doubt, a conflict of rulings between this Court and the Bombay High Court on this point. The Bombay High Court has ruled that Article 147 of the second schedule to the Limitation Act applies to a suit like the present, in which case no doubt this suit would not be barred by limitation. But we are bound by the Full Bench ruling of this Court, and must hold that the period of limitation is 12 years, and that the suit accordingly is barred. This question of limitation was never raised in either of the Courts below; nor has it been raised in the memorandum of the appeal to this Court. But we have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s:--Whether we are obliged to allow this objection to be taken and, if not so obliged, whether we should exercise our discretion in favour of the appellant who has now, after three years' litigation and, in the circumstances stated, for the first time, raised this plea in bar. I am clearly of opinion that we are not so bound, and that Section 4 of the Limitation Act is controlled by the provisions of Section 542 of the Civil Procedure Code. The illustration to Section 4 of the Limitation Act cannot affect the precise provisions of the other statute. The matter then resolves itself into one of discretion, and I think that it would, under the present circumstances, be a fair and proper exercise of our discretion to disallow the objection which was not set out in the grounds of appeal and to which the attention of the parties was, in no wise, drawn at any stage of the litigation. Speaking for myself, I am not in a position to say that the matter is one which could not in any event be affected by any question of fact. The hearing of the Reference should, therefore, in my opinion, proceed upon the merits and we should decide the points which have been referred to us for decision. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of limitation has not been raised in the grounds of appeal, leave of the Court must be obtained under Section 542. In support of this view, reference may be made to Ram Kishen Upadhia v. Dipu Upadhia I.L.R. (1891) All. 580, Ahmad Ali v. Waris Husain I.L.R. (1893) All. 123, and Kyin Baw v. Manugson (1904) 2 L.B.R. 237. It is therefore necessary to consider whether in the present case, the Court ought to exercise in favour of the appellants its discretion under Section 542 of the Civil Procedure Code and allow them to take the point of limitation though it has not been taken in the memorandum of appeal. The respondent does not suggest that he has been taken by surprise, nor does he contend that he would have been in a better position if the point had been included in the grounds originally. Under these circumstances, I think leave ought to be granted under Section 542 of the Civil Procedure Code. 13. This leads me to the first question, whether it is obligatory upon this Court as a Court of appeal to entertain the question of limitation and dismiss the suit on that ground, although limitation has not been set up as a defence at any previous stage of the proceedings. The answer s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the test to be, does the question of limitation, arise upon the pleadings or upon the evidence. Apart, however, from the question of the right of the appellant to raise the point, it is incontestable, that it is the duty of the Court to deal with the matter, provided it arises on the pleadings or on the facts found (if the case is in a Court of second appeal), or on the materials on the record (if the case is in a Court of first appeal): Ambala Vaveri Manakel Raman v. Nadu Vakat Krishna I.L.R. (1883) Mad. 325, Har Narain Singh v. Bhagwant Kuar I.L.R. (1891) All. 300, 304 where the Judicial Committee said-- The statute is there and the Judges are bound to take judicial notice of it. I must hold, therefor, that Section 4 of the Limitation Act applies to an appellate Court subject to the restriction I have explained. I have arrived at this conclusion independently of illustration (a), because it has been said that illustrations cannot control the meaning of a section [Koylash Chunder Ghose v. Sonatun Chung Barooie (1831) I.L.R. 7 Calc. 132, Nanak Ram v. Mehin Lal (1877) I.L.R. 1 All], though the Legislature has sometimes deemed it necessary expressly to repeal them [Act II of 1882 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rees: Ahmad Ali v. Waris Husain I.L.R. (1893) All. 123, 127. My view, then, of the combined effect of Section 4 of the Limitation Act and of Sections 542 and 584 of the Civil Procedure Code is this: the appellant is not entitled, without the leave of the Court, to urge or be heard in support of the ground of limitation, if it has not been set forth in his memorandum of appeal. The appellate Court may grant the leave; whether it should do so depends on the circumstances of the case. But the appellate Court may of its own motion consider the question of limitation, though the plea has not been taken in the memorandum of appeal, and rest its decision on that ground, provided that the opposite party is given adequate opportunity to be heard on the point. In either case, however, the bar of limitation must be patent on the face of the proceedings. 16. As regards the plea of limitation in this particular case, there can be no possible controversy that it must prevail. The mortgage by way of conditional sale which the plaintiff seeks to enforce was executed on the 20th January 1887; the mortgage money was repayable on the 24th January 1891; the present action was commenced on the 23rd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R. 83, Mahomed Amir v. Jan Patel (1898) 12 C.P.L.R. 26. If the case had been heard finally by the Judicial Commissioner of the Central Provinces, no question of limitation would probably have been raised; but as by reason of the, transfer of Sambalpur to the jurisdiction of this Court, the appeal comes to be heard by this Court where a different interpretation has been put upon the provisions of the Limitation Act, a fatal objection to the suit becomes possible. This may be hard on the plaintiff; but the learned vakil does not argue that for this case the Court is bound to adopt the interpretation which prevails in the Courts of the Central Provinces. I must hold, therefore, that there is no answer to the objection that the suit is barred by limitation. I may add that upon the facts as disclosed in the judgments of the Courts below, the claim is unquestionably very stale, and, if there is any case in which a Court ought to exercise its discretion under Section 542 of the Civil Procedure Code, this is pre-eminently of that description. On these grounds, I hold that the plea of limitation ought to be entertained and allowed, the appeal decreed, and the suit dismissed, but without cos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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