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Judgment
This case is covered by the decision in Arayil Kali Amma and Others Vs. Palappakkara Manakal and Others, An ex parte decree was passed
the 4th September 1894. The third Defendant, a minor who she he attained majority on the 16th January 1909, applies on, 25th idem to set aside
the ex parte decree. The new Limitation Act came into force on the 1st of January 1909. If this applies, it is clear that the application is barred.
Article 164 the new Act gives thirty days from the date of the decree for application. The other alternative of thirty days from the date hen the
applicant becomes aware of the decree where he was not served with notice, has no application to the facts of this case as is not alleged that
notice was not served. The period of thirty ays from the date of the decree would have expired on the 4th of October 1894. The Appellant pleads
the disability of minority. But u/s 6 of the new Limitation Act, it avails only as regards suits and applications for execution. It follows that if he new
Act applies the application is barred. But the Appellant contends on the authority of Moro Sadashiv v. Visaji Raghunth ILR (1892) 16 Bom. 536
hat on general principles apart from Section 6 of the Act a fresh period must be held to run from the cessation of minority. Assume coming that
case to have been rightly decided, it has no application to he present, because Section 7 of the old Limitation Act has been deliberately modified
so as to confine the operation of disability to suits and applications for the execution of decrees and it will be against all principles of interpretation
to allow minority to operate as a ground of disability in cases deliberately excluded from Section 6. An application to set aside an ex parte decree
unlike an application u/s 230 of the old Code of CPC is specially provided for by Article 164 which is one of the applications ailing within Section
3.
It is then contended that Section 7 of Act XV of 1877 under which the disability of minority applies to all applications governs his case. Such a
contention runs counter to the express provision of Section 3 of Act IX of J 908. It runs "" subject to the provisions contained in Sections 4 to 2n
(inclusive), every suit instituted, mappeal preferred, and application made, after the period of limitaion prescribed therefor by the first schedule shall
be dismissed.... There is nothing in Section 6 (of the Act) that applies to this case. We may therefore read the clause so far as this case is
concerned without the words "" subject to the provisions conained in Sections 4 to 25 (inclusive)."" The present application is one made after the
period of limitation prescribed for it by article of the first schedule. It follows that the application ought to be dismissed. It is argued, however, that
Section 6 of the Greneral Clauses Act of 1897 renders the new Limitation Act inapplicable. That section provides that unless a different intention
appears, the repeal of an enactment"" shall not affect any right, privilege, obliga tion or liability acquired, accrued or incurred under any enactment
so repealed."" Under Act XV of 1877 the applicant had the right or privilege to move the Court to set aside the ex parte decree within thirty days
from the cessation of minority. It is said that that cannot be affected by the repeal of Act XV of 1877. There are two answers to this contention
First, assuming that the right to apply to set aside an ex parte decree is a right within the meaning of the section (as to which see Colonial Sugar
Refining Company v. Irving (1905) A.C. 369 such a right to apply is not acquired under the Limitation Act of 1877 but under the Code of CPC
(Order 9, Rule 13). The Limitation Act merely limits the period within which the right given by the Procedure Code may be exercised, see The
Ydun (1899) P. 236 Clause C of Section 6 of the General Clauses Act therefore does not save the application .
The Hope Mills Ltd. Vs. Vithaldas Pranjivandas, to which our attention was drawn by the Respondents'' vakil is a case exactly in point. Another
answer to the contention is given by the words "" unless a different intention appears,"" see Moon v. Durden (1848) 76 R.R. 479 A different
intention does appear in Section 3 of Act IX of 1908 which expressly makes Article 164 of the first schedule to the Act applicable to the case.
Moreover Section 30 of the Act, which gives a special period of two years in the case of suits for which a shorter period of limitation is provided
by the new Act than by the old Act, makes no similar provision in the case of applications. Expressio unius exclusio al terins. The intention seems
to be abundantly manifest that the new Act applies.
It was pressed upon us that this was a case of hardship. On the date when the new Act came into force the period provided by it having expired
the right which the applicant had is practically withdrawn from him. There is, no doubt, some force in the argument. The facts of the Bombay case
did not raise this difficulty, see Macleod, J., at page 734(5). But as pointed out in Arayil Kali Amma and Others Vs. Palappakkara Manakal and
Others, the new Limitation Act which was passed in August 1908 and came into force nearly five months later on the 1st of January 1909, gave
ample notice to all who would be seriously affected by the change in the law to seek their remedy under the old Jaw before the new Act came into
operation. There was a mode of relieving one''s self from the hardship created by the change in the law which was available to those who were
likely to be affected by the change--Towler v. Chatterton (1829) 6 Bing R. 258 at p 264 The Queen v. The Leeds and Bradford Railway
Company (1852). The plain language of Section 3 of the Act must be given effect to. The appeal is dimissed with costs.