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TMI Blog1940 (10) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... s took various pleas, those with which we are concerned in this appeal being that the suit was based on a mere acknowledgment executed after the period of limitation had expired in respect of the previous sarkhat, and that as it did not fall within the requirements of S.25 (3), Contract Act, the suit was barred by limitation. Other contentions were that part of the consideration for the sarkhat amounting to Rs.500 was illegal being of a wagering nature, and they also claimed to have the transactions re-opened under the Usurious Loans Act. All these points were decided against the appellants in the lower Courts. 2. Before us the learned counsel for the respondent has endeavoured to side track the point of limitation, which the appellants ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igant was entitled to proceed out of time by reason of some special provision of law, such a question not having been raised by or on his behalf. If a litigant claims the benefit of an exceptional rule of the kind indicated it is clearly his duty both to do so expressly and to establish his claim. This is in accordance with general principles, and is recognized by 0. 7, R. 1 of the Code, which provides for the contents of a plaint, and lays down a rule applicable, by virtue of S. 141, to applications mutatis mutandis. It is true that the petitioner was described in the headings to certain applications made in this case as a minor represented by a guardian, but that alone was clearly not sufficient to entitle him to the benefit of S. 7, Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Privy Council in 3. ('35) 22 AIR 1935 PC 85 : 155 IC 205 : 57 All 242 : 62 IA 80 (PC), Maqbul Ahmad v. Onkar Pratap Narain Singh while considering the applicability of S. 14, Limitation Act, to the facts of the case before them, pronounced that S. 4, Limitation Act, had nothing to do with computing the period prescribed under S. 14. The reasoning of their Lordships applies equally to a case where S. 19 is in issue as to a case where S. 14 applies. That case was followed by a Full Bench of the Lahore High Court in 4. ('38) 25 AIR 1938 Lah 234 : 174 IC 277 : ILR (1938) Lah 193 : 40 PLR 533 (F B), Shanti Parkash v. Harnam Das which was a case under S. 19, Limitation Act. The same view was also expressed in ('37) 24 AIR 1937 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at case appears to us to be unanswerable : Unless a promise to pay is in writing it cannot fall within the purview of S. 25 (3), Contract Act. The implied promise to pay which is contained in all acknowledgments does not attract the provisions of S. 25 (3) of the Act, because the promise to pay is not in writing. 5. Here the words used in Ex. P-1 are: juna hisab raju karna baki dena raha Rs. 3200 which may be translated : after taking old accounts into consideration there remains to be paid a balance of Rs. 3200. This is not quite the same as the wording of the document which Bose J., was considering in the above mentioned case but it is near enough for his reasoning to apply with equal force. Somewhat similar words to those used ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to the respondent; it purports to emanate from Heeralal Sheojiram whereas the appellants are Shivjiram and Chotelal, sons of Dhannalal, and it is addressed to Nirbhe Ramji Kanayalalji which is not the name of the plaintiff or of his father. Even if it is a communication from one of the parties to the other, it does not, in our view, evidence any novation. The idea of a novation first appears to have occurred in the lower appellate Court since it held that as the parties had agreed to pay the amount in ten instalments there was a novation of contract and a fresh cause of action at the time of execution of the sarkhat. It is this aspect of the case which Mr. Padhye has elaborated in his argument before us. We consider that the lower appell ..... X X X X Extracts X X X X X X X X Extracts X X X X
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