Sarat Kumary Dassi vs Jagat Chandra Roy

Maclean, C.J.—This appeal arises a short but interesting point, viz., as to what is the true effect of the construction of the 4th clause of Article 179 of the 2nd schedule of the Indian Limitation Act. It will be useful in the first instance to consider the principle upon which the Court should act in construing legislation of this class, and in the case of Luchmee Buksh Roy v. Ranjit Ram Pandey 13 B.L.R. 177 being a decision of the Privy Council, I find a passage in the judgment in the following words :--"It has been said, that this case ought to be decided upon an equitable construction, and not upon the strict words of the Statute, but their Lordships think that Statutes of Limitation, like all others, ought to receive such a construction as the language in its plain meaning imports. Statutes of Limitation are, in their nature, strict and inflexible enactments. The object of the Legislature in passing them is to quiet long possession and to extinguish State demands. Such legislation has been advisedly adopted in India as it has been in this country, and their Lordships think that in construing these Statutes the ordinary rules of interpretation must prevail." Now clause 4 of Article 179 says:-- "That where the application next hereinafter mentioned has been made, the date of applying in accordance with law to the proper Court for execution, or to take some step in aid of execution, of the decree or order, shall be the date from which the period of limitation shall begin to run." In this case the application for execution was made by the judgment-creditor, in accordance with the practice of the Court, on the nth January 1893: and on the 3rd March 1893, the order for attachment was made. If the date from which the period begins to run is the 11th January 1893, the present application is out of time as the present application was not made until the 21st of February 1896; but if the period begin to run from the date of the order, namely, the 8th March 1893, the present application is within time. We have therefore to consider, in the first instance, reading the language of the article in its plain and ordinary signification, what is the meaning of the words used in that clause, "the date of applying in accordance with law to the proper Court for execution." Reading, as I think, we are bound to read those words in their ordinary sense and placing such a construction upon the language as the plain meaning imports, I think that the date of applying in this case was the day upon which the application for execution was made, viz., on the nth January 1893; and this view is in accordance with the decision of the High Court at Allahabad'' in Fikir Muhammed v. Ghulam Hossain ILR 1 All. 580.

It was however urged for the Respondents that even if that be the true construction of the article, in this case the judgment-creditor made a fresh application to take some step in aid of execution, on the 3rd March 1893. If this view be sound, then the present application would not be out of time.

The question then is, and it is one of fact, was any fresh application made to take some step in aid of execution on the 3rd March 1893? It appears to me that the order which was made on the 3rd March 1893, was made upon the application made on the 11th January 1893. There is nothing to show, that there was any fresh application made on the 3rd March 1893. By fresh application made, I mean some application made to take some step in aid of execution. Looking at the terms of the order as drawn up it is clear, that that order was made as upon the application of the nth January 1893, and not upon any fresh application. What happened was this :-Consequent upon the creditor''s application of the 11th January, a notice was served on the judgment-debtor calling upon him, if so minded, to come in and show cause why execution should not issue : he did so, and in the face of his objection the order of the 3rd March 1893 was made. There was no fresh application made on that date by the judgment-creditor to take some step in aid of execution. The learned Judge finds in his judgment that a further application on behalf of the judgment-creditor to take "steps in execution " was made on the 3rd March 1893. I am unable to discover upon what the learned Judge bases that finding of fact or to arrive at the conclusion that a fresh application was made on that day. For these reasons I think this appeal must be allowed with costs.

O''Kinealy, J.

I concur in the judgment which has been just delivered. It all seems to me to turn on what happened on the 3rd March 1893, and that is a pure question of fact whether or not he made any application in aid of execution. It appears to me that all he did really was that he was heard against the application of the judgment-creditor. I concur, therefore, in considering that the appeal should be decreed with costs.

Hill, J.

I am of the same opinion.