KHETRA MOHAN CHATTERJEE Vs. MOHIM CHANDRA DAS

JUDGEMENT

(1.) In the case out of which this appeal arises, the plaintiffs, the sole landlords, sued the defendant for rent and obtained, on the 26th April 1907, a consent-decree for the amount claimed (Rs. 315) payable in five instalments, the last to be forthcoming in January 1911. On the 24th February 1909, the defendants paid the exact amount of the first three instalments together, and on the 6th April 1911 the plaintiffs applied for execution in respect of the balance. The application, which was thus made more than three years after the date of the decree, has been dismissed by both the Courts below as time-barred by Article 6, as amended, of the third Schedule to the Bengal Tenancy Act, 1885.

(2.) The plaintiffs have now preferred this second appeal, and the first point taken on their behalf is that the Article quoted has no application. In my view, however, this is not so. Read with Section 184, the Article provides, in these words, that "every application for the execution of a decree made under this Act in a suit between landlord and tenant to whom the provisions of this Act are applicable, and not being a decree for a sum of money exceeding Rs. 500, shall be made within three years from the date of the decree, and every such application made after the period of limitation so prescribed shall be dismissed although limitation has not been pleaded." That a decree for rent in a suit in which the parties are bound by the provisions of the Bengal Tenancy Act, 1885, is a decree made under that Act was laid down by Petheram, C.J., and Beverley, J., in Baikanta Nath Mittra v. Aughore Nath Bose 21 C. 387 and has, so far as I know, never been doubted, save in the case, which is not the case here, of a co-sharer suing before the Act was amended in 1907. The provisions of the Act are admittedly applicable to the parties before us. Therefore, the Article applies; for the language is plain and refers to all decrees for rent in suits brought by landlords against tenants as such where the parties are bound by the provisions of the Tenancy Act of 1885, and not by those of, for example, the Transfer of Property Act of 1882. This is in consonance with the views expressed by Mookerjee and Vincent, JJ., in Thakomoni Dasi v. Mohendra Nath Dey Sarkar 10 C.L.J. 463; 3 Ind. Cas. 389 which I am disposed to follow rather than the later ruling of Brett and Sharf-ud-din, JJ., in K.B. Dutt v. Gostha Behary 16 C.L.J. 379; 16 C.W.N. 1006; 17 Ind. Cas. 207.

(3.) But the next and remaining contention is that the defendant, by consenting to a decree which expressly provided for a payment after the expiration of three years from its date, impliedly agreed to waive the special rule of three years limitation and submit to a simple money decree and the ordinary rule of limitation. This at once raises the question whether the parties to a suit can contract themselves out of the law of limitation and extend the period prescribed thereby. I am of opinion that the reply to this question must be in the negative.