MASSILAMONY THANKAYYAN Vs. VELAYUDHAN NADAR
LAWS(KER)-1967-3-12
HIGH COURT OF KERALA
Decided on March 30,1967

MASSILAMONY THANKAYYAN Appellant
VERSUS
VELAYUDHAN NADAR Respondents

JUDGEMENT

- (1.) In S. A. 135 of 1962 which was disposed of on 29 7 1966 the appellant has filed a review petition on 15-2-1967, the 89th day. The office has noted that since Art.124 of the Schedule of the Limitation Act 36 of 1963 governs the application it is barred by limitation having been filed beyond 30 days from the date of the decree. The stand taken by the learned counsel for the petitioner was that the petition for review is governed by Art.173 of the Indian Limitation Act, 1908 which was the Act in force on the date of institution of the suit which has given rise to the application for review and support was sought for this proposition from the decision of the Supreme Court in Beepathumma v. Shankaranarayana AIR 1965 SC 241 .
(2.) In the case of an application for permission to file an appeal in forma pauperis to be filed in this Court against the decree of the Trial Court passed after Act 36 of 1963 in a suit instituted when Act 9 of 1908 was in force Raman Nayar, J. in C. M. P. No. 4209 of 1965 in A. S. of 1965 held that as the decree appealed from was made after Act 36 of 1963 came into force Art.130 (a) of the Schedule of the said Act governs the matter. The learned counsel for the petitioner challenged the correctness of this view in view of the decision of the Supreme Court in Beepathumma v. Shankaranarayana AIR 1965 SC 241. The contention of the learned advocate for the petitioner was that since the right of review is a vested right, the Limitation Act 9 of 1908 which was in force on the date of the institution of the suit should apply. The contention of the learned counsel is without any force. It is no doubt a general principle of law that no statute shall have any retrospective operation unless its language warrants for such a construction. A statute which takes away or affects vested rights or imposes a new liability or confers a new right must be presumed not to have any retrospective operation. But law of procedure is retrospective except in cases where it tends to destroy the right or the remedy. No one can have any vested right in any particular form of procedure. The statute of limitation being a law of procedure is generally retrospective in operation so as to apply even to proceedings which are pending when the enactment comes into force. No person can be said to have a vested right to bring an action or to prefer an appeal or to make an application within a specified period of time. The law of limitation does not create any right in favour of any person, but simply prescribes the period of time within which the remedy has to be exercised. It therefore follows that for instituting any suit or for filing any application the law of limitation applicable is the law in force on the day on which the suit or application has to be instituted or filed. It was not contended on behalf of the petitioner that the right of review available to him is on account of any provision contained in the Limitation Act of 1908 and it was not also suggested that the right of review has been taken away by Act 36 of 1963. Even assuming that a right of review is a vested right what Art.124 of the Schedule of Act 36 of 1963 has done is only to shorten the period of limitation for an application for review from what was prescribed by Act 9 of 1908 and not to destroy that right. Act 36 of 1963 came into force on 1 1 1964. The right to file the application for review in the case before us arose only after the new Act has come into force. S.32 of Act 36 of 1963 has repealed Act 9 of 1908. It therefore follows that the view taken by the office is correct. The observation in Beepathumma v. Shankaranarayana AIR 1965 SC 241, "there is no doubt that the Law of Limitation is a procedural law and the provisions existing on the date of the suit apply to it" was relied on by the learned counsel for the petitioner in support of his contention that Act 9 of 1908 governs the application. Their Lordships only held that the question whether the suit is barred by limitation, has to be decided in the light of the provisions of the Limitation Act in force on the date of the filing of the suit. This is no authority for the position, that even for applications to be filed in the suit, the provisions of the Limitation Act in force on the date of the suit should apply, even after its repeal. The said observation therefore does not in any way affect the decision of Raman Nayar, J. The decision in Hanumanprasad v. Sales Tax Officer (1963) 14 STC. 507 cited by the petitioner's counsel was based on an interpretation of the provisions of the Madhya Pradesh General Sales Tax Act, 1958 and cannot be of any guidance in deciding the point raised on behalf of the petitioner. We are therefore of the view, that the relevant Article applicable in the case is Art.124 of the Schedule to the Limitation Act 36 of 1963. The petition is therefore out of time. The petitioner is granted time till 23 5 1967 to file an application to excuse delay.;


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