C. Ganapathi Mudaliar vs N. Krishnamachari and Others

The question is whether the orders of the Lower Court dismissing these two petitions by the appellants as out of time are correct. Of those

petitions C.M.P. No. 90 of 1920 was by the appellant for the setting aside of a court sale held on 19-9-1887 in execution of a mortgage decree

and for a fresh sale on an amended proclamation. He also asked for an amendment of the execution petition of his opponent, the decree holder, by

bringing it into conformity with the decree under execution. In C.M.P. No. 91 of 1920 he asked leave to amplify this prayer by asking the court to

order, if, necessary a fresh proclamation of sale, giving correct information as to the interests of the various defendants with a full description of the

nature and value of the properties."" There was also a prayer for leave to withdraw the portion of paragraph 20 in C.M.P. No. 90, in which he

declined to proceed against 5th to 14th defendants, transferees of the decree holders, purchasers. This last prayer has been subjected to special

objection. But the amendment was asked for before any prejudice could have arisen and it would have raised no new question of limitation. This

objection is therefore groundless.

We accordingly have to deal only with the question of limitation, as raised by the earlier C.M.P. No. 90, which was presented on 24-9-1919,

over 30 years after the sales sought to be set aside. The explanation for the delay is first that, as the appellant alleges, owing to fraud he was kept

from knowledge of his right to apply until February 1907. That allegation is disputed and has not been dealt with by the lower court. But it is not

necessary for us to deal with it, as, even if it is accepted, the applications are still, in our opinion, out of time. Secondly the appellant contends that,

the period applicable to his application is three years from February 1907. Thirdly, that he is entitled to exclude from the period, the time taken by

him in prosecuting in good faith, a suit, which began on 16-11-1907 and ended with the judgment of the Judicial Committee on 14-12-1917 when

his suit was, it is said, held to be barred by Section 244 of the previous Code (Code of Civil Procedure, 1882) corresponding with Section 47 of

the present Code (Code of Civil Procedure 1908). It is not disputed that, if both these contentions are sustained, these petitions will be in time on

the assumption that the starting point is some date in February 1907. In our opinion neither of them can be sustained. It will however be sufficient if

either of them fails.

It is important to decide first what is the law applicable, for the present Law, Act IX of 1908, came into force on 1-1-1909. It is admitted that

the appellant''s third contention already stated is, apart from any other objection to it, unsustainable, if the previous Act of 1877 applies, because

Section 14 of that Act allowed an applicant the time spent only in making another application, not in conducting a suit, whereas under the present

law, allowance can be claimed for the time spent in prosecuting another civil proceeding, whatever its character. This point can at once be decided

in appellant''s favour. For all the authorities regard the law of limitation as a law of procedure and lay down that laws of procedure have

restrospective effect. This rule is not the less binding, because authority recognizes exceptions to it in particular cases, and appellant desires by one

of his alternative contentions to avail himself of one of those exceptions and to claim 3 years for his cause of action under Article 178, Schedule II

of the former Act (Indian Limitation Act 1877) instead of 30 days under Article 166 of the present Act (Act IX of 1908). For there is neither

reason nor authority for holding that in the argument to be considered anything but an exception or anything obliging the party to make an election

between the application of one Act and the other, as a whole, is in question. The exception of which, the appellant proposes to avail himself, is, he

contends recognised in the reference in Rajah of Pittapur v. Venkatasubba Rao ILR (1915) Mad. 645 by Wallis, C.J. to cases, in which the

application of the new law would absolutely destroy the plaintiff''s right of suit, which was in existence when it came into force; and in the dictum of

Kumaraswamy Sastry, J., that ""both on principle and on the balance of authority the new law ought not to be applied so as to kill causes of action

which were alive on the date of its enactment"", and also in the endorsement by Wallis, C.J., and one of ourselves of these references in Vaidianatha

Aiyar v. Govindaswamy Udayar (1921) 13 L.W. 522 . Certainly, if the fact that the parties'' right is destroyed by the application of the new law is

alone to be decisive, then the appellant must be allowed to benefit by the exception thus recognised and to rely on the former Act. For, if Section

14 is assumed applicable to his case, a point we return to, he certainly had time to proceed, of which the new Act deprived him when it came into

force on 1-1-1909.

Closer examination however shows that this view of the authorities requires qualification. In Vaidianatha Aiyar v. Govindaswamy Udayar (1921)

13 L.W. 522 the court was only recognizing an exception which was applicable to the case before it and which there was no necessity for it to

define more closely. Probably it would have been better if it had stated clearly what appears to be the law, that the same rule applied, whether (as

in the present case) the time available under the new Act was merely shorter than that available under the former Act or no time was available

under the new Act at all. Rajah of Plttapur v. Venkatasubba Rao I.L.R(1915) . Mad. 645. was in fact a case of the latter kind, and the three

learned judges made it clear that the point is not merely whether the right is destroyed by the new law, (and to this the judgment of Wallis, C.J. in

Vaithinatha Aiyar v. Govindaswamy Udayar (1921) 13 L.W. 522. refers but also whether any period intervened between the enactment of the

new law and its coming into force, Seshagiri Aiyar, J. in his dissenting judgment stating that ""one underlying principle of the cases which lean against

retrospective operation is that, if the new Act gives no days of grace for its coining into operation, but makes it law as soon as it is passed, courts

should hold that the Legislature did not intend to interfere with vested rights. But where litigants had previous notice and could have enforced their

rights before the Act became law they cannot claim relief"". The learned judge in fact only differed from the other members of the Bench, because

he held, that in the particular case, that of the Estates, Land Act, such a notice had been given. In earlier cases, Arayil Kali Amma v. Sankaran

Nambudripad I.L.R(1910) . Mad. 292, Chidambaram Chetty v. Karuppan Chetty ILR (1911) Mad. 678. Ramakrishna Chetty v. Subbaraya Iyer

(sic) ILR 38 Mad. 101 the same view was taken. Of the English cases relied on, those which like Moon v. Durden 2 Welsby, Hurlstone and

Gordon 22 deal with substantive right or like Colonial Sugar Refining Co. v. Irving (1905) A.C. 369 deal with incidents of procedure resembling

the general rule that a new statute has no retrospective effect, unless it contains some indication that the contrary is intended. But the doctrine

applicable to new laws of limitation was laid down generally in R. v. Leeds and Bradford Rail Co. (1852) 21 L.J. (M.C.) and The Ydun (1899)

P.D. 236, as it is stated in the Indian decision, and we respectfully adopt it, as depending in the existence of an interval between the passing and

the coming into force of the new statute, whether the case is one in which the right to proceed is destroyed or merely curtailed. Taking this view,

we must hold m the present case that the Limitation Act of 1908 applies to the appellant''s cause of action, because that Act received the assent of

the Governor-General in Council on 7-8-1908 and came into force on 1-1-1909.

The appellant, however, has argued that, even if the Act of 1908 is applicable, he had three years to present his application, because the Article

applicable is not No. 166 but No. 181. He has no doubt adduced some authority for this contention, since in Ram Kinkar v. Sthiti Ram (1918) 27

C.L.J. 528 and Sheikh Ariatullah v. Sashi Bhusan Hajrah (1919) 24 C.W.N. 73 are in his favour. But in the first of these the relevant portion is

obiter and not material to the decision, whilst in the second the point was conceded and there was no discussion of it. The appellant has then relied

on Seshagiri Rao v. Srinivasa Rao 38 M.L.J. 62 to show that where (as here) the sale is impugned as void, Article 181 is applicable. But the

conclusion in that judgment is supported only by reference to an unreported case, not by any independent reasoning and the ground on which the

learned judges distinguish Muthiah Cheitiar v. Bava Sahib (1924) 27 M.L.J. 605 that the applicant before them was not a party within the meaning

of Section 47 would not be available to us. On the other hand, Neelu Neithiar v. Subramania Moothan (1920) 11 L.W. 59 and the decision of one

learned judge in Muthiah Cheitiar v. Bava Sahib (1924) 27 M.L.J. 605 show that Article 166 is applicable to petitions u/s 47, whatever their

nature; and in Payidanna v. Lakshmi Narasimha I.L.R.(1912) Mad. 1076 an authority apparently not brought to the notice of the learned Judges in

Seshagiri Rao v. Srinivasa Rao 38 M.L.J. 62 the decision of the learned judge, who dealt with, on the point, was incidentally to the same effect,

when the sale was impugned as void. The wording of Article 166 is unrestricted and we do not consider that we are at liberty to impose

restrictions, which nothing in it suggests. It, no doubt covers, only applications under the Code; but that is immaterial, as in the present case, the

controversy is between the parties and an application instead of a suit, is authorized by Section 47. We therefore hold that Article 166 of Act IX of

1908 is applicable.

We have next to consider whether Section 14 of that Act has been complied with. We will for the sake of argument, assume that the

applications before us are for the same relief as the suit although in fact, a further relief was asked for in the latter. We will also assume that the suit

was prosecuted in good faith. But we have still to decide whether the lower Court was unable to entertain that suit, for defect of jurisdiction, or

other cause of a like nature"". We can hold that it was so, only if we adopt the comprehensive view of the latter expression taken in Mathura Singh

v. Bhawani Singh ILR (1900) All. 248 . That however would admit practically every conceivable case, in which a party had proceeded in good

faith; and the wording of the section makes it clear that, is not the meaning, No authority has been shown on the point, Cases of misjoinder are

specially provided for by explanation 2. Here we have to deal with a case, in which the proceeding and the remedy have been wholly

misconceived. Of the various authorities shown Murugesa Mudaliar v. Jattaram Davey ILR (1900) Mad. 621 is against the application of the

section to such cases. We are unable to see how the failure of the appellant in the prosecution of his claim by suit can be attributed to anything

connected with the jurisdiction of the Court. We, therefore, are constrained to hold that Section 14 cannot he applied. The result is that the lower

Court''s order dismissing these applications, as out of time, was justified.

Lastly we have been asked to interfere in the exercise of our inherent powers, The circumstances are, that the appellant, originally, after

becoming aware of what happened, proceeded by a petition in February 1907. Afterwards, he says because of the legal advice he obtained, he

withdrew that petition on 20-11-07, shortly after bringing the suit, already referred to. We are asked to use our inherent powers to authorize the

revival of the petition which the appellant himself had withdrawn; and Pannireddi Sambayya v. Nimmagadda Nagayya (1919) 9 L.W. 513,

Venkata Rao v. Tuljaram Rao (1917) M.W.N. 30 and Khajooroonissa v. Rowshan Johan (1876) ILR 2 Cal. 184 (P.C.) are cited as affording

precedents for our doing so. In the first case, however, one of the learned judges concerned expressly stated that the decision must not be

regarded as a precedent. In the other two cases the abandonment of proceedings owing to compromises to which afterwards, effect was not

given, was in question. There is nothing resembling that in the facts before us. Although, the appellant has referred to the objection, taken by the

respondent in the counter petition in 1907 to his proceeding by petition, instead of by suit, that involves nothing, which can be regarded as

resembling the withdrawal by the parties concerned in the cases relied on in consequence of the failure of the compromise agreement. Here it was

for the appellant to choose his own procedure; and it is significant that he made no reference in the suit, so far as appears from the judgment of the

Judicial Committee, to the suggestion that he had done so with reference to the plea of his opponent, In the case before us the appellant has been

at fault throughout, either by choosing an incorrect procedure or after the Judicial Committee''s decision by a delay, which he has not satisfactorily

explained, in approaching the Court with the present application. Inherent powers are not to be used in order to relieve a party from the

consequences of his own mistakes or to enable him to evade the law of limitation. In these circumstances this contention also fails. The appeal fails

and is dismissed with costs. C.R.P. No 491 of 1921 against the lower Court''s order in so far as it relates to C.M.P. No. 91 is dismissed with

costs.