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TMI Blog1925 (7) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... t, and he has awarded the plaintiffs a decree for those amounts, but he has dismissed the claim in regard to other items on the ground that they were received more than three years before the institution of the suit. The appeal is in regard to the sums which have been disallowed. 4. The starting point of limitation is the time when the amounts were received, and the learned Judge's decision is correct, unless we admit the proposition urged on plaintiffs' behalf that the judgment-debtor's application to set aside the sale prevented the period of limitation from is starting. The learned Vakil says that the plaintiffs had only an inchoate right until the application was rejected and the sale confirmed, and that during this period they could not institute a suit and that, therefore, they are entitled to the benefit of the equitable principle adopted in the case of Ranee Surno Moyee v. Shoshee Mookhee Burmonia 12 M.I.A. 244 : 2 B.L.R.P.C. 10 : 11 W.R.P.C. 5 : 2 Sar. P.C.J : 424 : 2 Suth. P.C.J. 173 : 20 B.R. 331 : 1 Ind. Dec. (N.S.) 489. That is the decision to which later decisions refer, and I think it is well to point out that the facts of this case are entirely differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a cross-Objection by the defendant. This is in regard to item No. 10. This appears to be a mistake for No. 3. The learned Pleader for the defendant admits that there is a decree to warrant the finding in regard to Item No. 3: while on the other hand, his statement that there is no decree to show realization of Item No. 10 is not disputed. As one is a sum of ₹ 14-10-0 and the other a sum of ₹ 71-14-0 this change will reduce the amount of defendant's liability by ₹ 57-4-0. 7. No costs are awarded in the cross-objection. Mookerjee, J. 8. I agree in the order which my learned brother proposes to pass in this, appeal, but in view of the importance of the question which arises I desire to give my reasons. 9. It must be conceded that upon the plain words of Article 109 of the First Schedule to the Limitation Act, which is the Article applicable to the case as the claim is for profits which are alleged to have been wrongfully received by the defendant, the claim for such profits would be barred unless the suit is instituted within three years from the dates when the profits are received. It must also be conceded that there is no provision in the Act its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int of limitation fixed by the Statute has been held to have arisen at a subsequent date and those in which it has been held that the operation of the Statute has been suspended after time has begun to run. It is necessary to bear this distinction in mind in order to appreciate the exact significance of the decisions. 12. The earliest of these cases is that of Ranee Surno Moyee v. Shoshee Mokhee Burmonia 12 M.I.A. 244 : 2 B.L.R.P.C. 10 : 11 W.R.P.C. 5 : 2 Sar. P.C.J : 424 : 2 Suth. P.C.J. 173 : 20 B.R. 331 : 1 Ind. Dec. 489. In that case a sale under the Patni Regulation having been set aside and the patnidars restored to possession the zemindar sued the patnidars to recover the arrears of rent which had accrued before and during the time they were out of possession. The contentions of the patnidars was that the claim was barred because the suit had not been brought within three years from the date when each instalment of rent fell, due. The suit was brought under Act X of 1859. The 32nd section of the Act prescribed the limitation for such a suit as three years from the last day of the Bengali year or from the last day of the month of Jeth of the Fasli or Willayuti year in whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rent. 14. In the case of Bassu Kuar v. Dhum Singh 15 I.A. 211 : 11 A. 47 : 5 Sar. P.C.J. 260 : 12 Ind. Jur. 450 : 6 Ind. Dec. 458 (P.C.) a debtor agreed to convey certain property to his creditor and to set off the debt against a part of the consideration for the conveyance; a conveyance was executed, but a dispute arose as to whether it was executed in conformity with the contract; the debtor commenced a litigation to enforce the agreement but was unsuccessful and the creditor sued on the debt and the debtor raised the plea of limitation. The debtor's suit, it may be stated, was decreed by the Subordinate Judge but was dismissed on appeal by the High Court. Their Lordships of the Judicial Committee considered the matter from two points of view, namely, according to the terms of the Contract Act, IX of 1872, and also according to the terms of the Limitation Act XV of 1877, both of which gave the same result. They held that under the 65th section of the Contract Act, the agreement was discovered to be ineffectual on the dismissal of the debtor's suit by the High Court and the debtor became bound to pay the debt on the date on which the suit was dismissed. They also held ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt dismissed the suit as barred computing the period from the original dispossession. The decision of the Court of Appeal is reported in the case of Lakhan Chandra Sen v. Madhusudan Sen 35 C. 209 : 7 C.L.J. 59 : 3 M.L.T. 80 : 12 C.W.N. 326. The Court of Appeal doubted whether the case fell under Section 14 of the Limitation Act, but held that the decree which the plaintiffs had obtained as co-defendants in the previous suit, so long as it stood un-discharged, was susceptible of execution and it was not open to the plaintiffs to institute a fresh suit for the attainment of the very object which they had successfully attained in the previous suit. They held that during the time that that decree was un-discharged, the plaintiffs' right to recover the property was suspended and they were, entitled to a deduction of the period. On an appeal being preferred the Judicial Committee dismissed the appeal observing that they concurred generally with the reasons given by the Court of Appeal, and, held that the plaintiffs were entitled to a deduction of the period during which they were litigating for their rights. It is not very intelligible under what provisions of the law their Lordships ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... good and sufficient cause within the exception to the operation of the Bengal Regulation of Limitation III of 1793, Section 14, why a mortgagee should not have instituted proceedings for foreclosure, within twelve years, the time prescribed by the Regulation. In the case of Hem Chandra Chowdhry v. Kali Prosanna Bhaduri 30 I.A. 177 : 30 C. 1033 : 8 C.W.N. 1 : 8 Sar. P.C.J. 529 (P.C.), it was held that the pendency of a suit for enhancement of rent of a tenure, in which there was a claim for a particular year, suspended the operation of the Statute in respect of a subsequent suit for rent for the identical year. The decision in the case of Baijnath Sahai v. Ramgut Singh 23 I.A. 45 : 23 C. 775 : 7 Sar. P.C.J. 1 : 12 Ind. Dec. 514 (P.C.) proceeded upon the construction of the words in the third column of Article 12 of Act XV of 1877, when the sale, is confirmed, or would otherwise have become final and conclusive had no such suit been brought and laid down what that point of time was in view of the fact that the plaintiff believed in good faith that be had secured what he claimed. In the judgment of the Judicial Committee in this case, however, there are indications suggesting tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oy 23 W.R. 280, Hafizunnessa Khatun v. Bhyrab Chunder Das 13 C.L.R. 214, Sheriff v. Dina Nath Mookerjee 12 C. 258 : 6 Ind. Dec. 175, Hurro Kumar Ghose v. Kali Krishna Thakur 17 C. 251 : 8 Ind. Dec. 705) and Burna Moyi Dassee v. Burma Moyi Choudhurani 23 C. 191 : 12 Ind. Dec. 127. In the case of Syud Abdool Juleel v. Kanchun Dossee 24 W.R. 143, it was pointed out that the Privy Council did not say in Ranee Surno Moyee's case 12 M.I.A. 244 : 2 B.L.R.P.C. 10 : 11 W.R.P.C. 5 : 2 Sar. P.C.J 424 : 2 Suth. P.C.J. 173 : 20 B.R. 331 : 1 Ind. Dec. 489 that the old cause of action revived but that a new cause of action arose. The doctrine, that the landlord is entitled in a suit for rent for the period that he was suing the tenant in ejectment which had been-held in the earlier cases as founded on the authority of Ranee Surno Moyee's case 12 M.I.A. 244 : 2 B.L.R.P.C. 10 : 11 W.R.P.C. 5 : 2 Sar. P.C.J 424 : 2 Suth. P.C.J. 173 : 20 B.R. 331 : 1 Ind. Dec. 489 was considerably modified in the case of Huronath Roy Chowdhry v. Golucknath Chowdary 19 W.R. 18. In the case of Huro Proshad Roy v. Gopaul Dass Dutt 3 C. 817 : 2 C.L.R. 450 : 1 Ind. Dec. 1104, Garth, C.J., reviewed the authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on does not arise as the rights, suspended for a time may be revived and enforced when the bar is removed seems to have been adopted in the cases of Laloo Karikar v. Jagat Chandra Saha 62 Ind. Cas. 428 : 33 C.L.J. 256 : 25 C.W.N 258 and Janaki Nath Sinha Roy v. Bejoy Chand Mahatab 64 Ind. Cas. 315 : 33 C.L.J. 366. In the case of Dina Nath Saha Roy v. Jadu Nath Biswas 86 Ind. Cas. 130 : 29 C.W.N. 202 : A.I.R. (1925) (C.) 456 a deduction of time during which a previous litigation was pending was allowed but it is not very clear whether on any general principle or by reason of the fact that the plaintiffs were in the position of persons whose claim had been satisfied. 22. The dictum of Lord Eldbn in Pulteney v. Warren (1801) 6 Ves. 73 : 31 B.R. 944 : 5 R.R. 226, if there be a principle, upon which Courts of Justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the party against whom relief is sought, a dictum which was broadly laid down in some of the earlier English cases and was subsequently approved by the House of Lords in the East India Company v. Compion (1837) 11 Bligh. 158 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after the decree passed by the High Court. The plaintiff then instituted a suit for possession and mesne profits against the executant of the documents and the lessees. It was held in that case that the plaintiff's cause of action arose on the date when the documents were registered and on the registration of the documents his title dated back to the date of the documents and between those two dates his right was kept in a state of suspended animation. It was laid down that ordinarily, limitation runs from the earliest time at which an action can be brought and after time has commenced to run there may be a revival of a right to sue when a previous satisfaction of the claim is nullified with the result that the right to sue which had been suspended is reanimated. It was also observed that the true test to determine when a cause of action has accrued, is to ascertain the time when plaintiff could have maintained his action to a successful result. These two propositions are the sheet-anchor of the appellant's contention in the present appeal. 25. As I have said at the very outset the matter is not altogether free from difficulty and to quote the words of Oldfield, J., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court. These authorities or the bulk of them have gradually acquired Legislative sanction in the shape of amending, repealing or consolidating Statutes. The law, however, as to limitation is not the same in England or America and India and indeed no reason or principle beyond that of sound public policy is discernible as a common feature. Apropos of equitable principles which have sometimes been imported into the Statute the following passage may be cited from Angell on Limitation, 5th Edition, p. 24: There are, however cases in which Courts of Equity will, interpose to prevent the bar of Statutes of limitation, as, for example, if a party has perpetrated a fraud which has not been discovered until the statutable bar may apply to it at law. That the enactment is positive is not allowed to be used against conscience, arid an equitable Tribunal will supply, and administer within its own jurisdiction, a substitute for an original legal right, of which a party has been fraudulently and unjustly deprived. The case of Pulteney v. Warren (1801) 6 Ves. 73 : 31 B.R. 944 : 5 R.R. 226 established the principle that where a party applies to a Court of Equity, and carries on an unfounded litig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not however much the language used by their Lordships in some of the decisions may suggest the same, laid down any such principle as being of universal applicability and that all the decisions of the Judicial Committee as well as most of the cases decided in this country are supportable on grounds which are in no sense founded on any general equitable principle extraneous to or unauthorized by the Statute. In cases in which the question arises as to the starting point of time for the purposes of limitation, these decisions are mostly reconcilable with a proper appreciation of what the cause of action means when the starting point is the cause of action or with a proper interpretation of the words used in the third column of the Articles in-other cases; and in cases where the question of suspension arises, if time has once begun to run it never again ceases to run, but there may be satisfaction of a claim or the cancellation of a cause of action operating to suspend the rights of the plaintiff who may, on the removal of the satisfaction or cancellation, avail of a fresh cause of action which arises by reason, thereof. The substitution of a new legal right on principles of equity is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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