- (1.) This appeal by certificate under Art. 133 (1) (a) (b) of the Constitution, raises an interesting but complex question of law, namely, what was the law of limitation applicable in the Union Territories of Goa, Daman and Diu to proceedings launched therein prior to and pending at the date of liberation. The question arises in these circumstances. One Melquiades Lusitano Joaquim Urbano Pereira died some time order to 1941 leaving as his heirs his widow Maria Cristina De Souza Sodder (Appellant No. 1) two sons Elasbano Pereira and Ciano Pereira (appellants Nos. 2 and 3) and two daughters Marias Zurona Pereira and Linda Pereira (Respns. Nos. 1 and 3). After the death of Melquiades his estate and property were partitioned on or about 28-1-1941 at that time respondent No. 1 was minor. On 15-3-1960, the first respondent and her husband second respondent filed a suit against the appellants and third and fourth respondents (fourth respondent being the husband of the third respondent) in the Comarca Court at Margao alleging that in the partition effected on January 28, 1941 certain items of properties had not been properly valued by the appellants as a result whereof they had suffered a loss, that respondent No. 1 who was a minor then had come to know of such improper valuation (under-valuation) only after her marriage and that, therefore. the said partition be amended and they be compensated for the loss suffered by them. Respondents Nos. 3 and 4 filed a written statement supporting the allegations contained in the plaint and further filed a counter-claim praying that the said partition be rescinded on the ground that it was null and void due to simulation and collusion. The learned trial Judge by his judgment and order dated March 8, 1968 decreed the suit and the counter-claim. feeling aggrieved by the said decree the appellants preferred an appeal being First Appeal No. 6 of 1968 to the Judicial Commissioner's Court at Goa on June 6, 1968.
(2.) Two preliminary contentions were raised on behalf of the respondents: (a) that the appeal had not been filed in proper Court and (b) that it was barred by law of limitation. These contentions were based on the provisions of the Portuguese Civil Procedure Code (hereinafter called the Portuguese Code). The respondents pointed out that according to the provisions of Portuguese Code (Art. 687) the appeal was required to be filed in the Court which decided the suit and as such appellants could not have lodged the appeal in the Court of Judicial Commissioner. It was further pointed out that under Art. 686 of the Portuguese Code the period of limitation for filing an appeal was 8 days from the service of the judgment or order of the trial Court and that since the appeal was filed beyond that period it was evidently barred by time. On the other hand, the appellants relying upon certain events that had taken place between the institution of the suit and the pronouncement of the judgment by the trial Court contended that the appeal had been properly filed in the Judicial Commissioner's Court and that the same was within time. It may be stated that admittedly four events took place during the pendency of the suit viz: (a) the territories of Goa, Daman and Diu were liberated and became a part of the Union of India with effect from Dec. 20, 1961; (b) the Limitation Act, 1963 that was enacted by the Parliament and which came into force on January 1, 1964, became applicable to the whole of India including the Union Territory of Goa, Daman and Diu; (c) the Parliament also enacted the Goa, Daman and Diu (Extension of the Code of Civil Procedure 1908 and Arbitration Act 1940) Act, 1965 (Act XXX of 1965) whereunder the provisions of the Indian Code of Civil Procedure 1908 were extended to the territories of Goa, Daman and Diu with effect from June 15, 1966, with the corresponding provisions of the Portuguese Code being repealed and (d) the Legislative Assembly of Goa, Daman and Diu enacted the Goa, Daman and Diu Civil Courts Act, 1965 (Act XVI of 1965) which came into force on June 15, 1966. Under S. 34 (2) of the last mentioned Goa enactment (Act XVI of 1965) the instant suit which was pending before the Comarca Court at Margao stood transferred and was continued and decreed by the corresponding Senior Civil Judge and under S. 22 of the said Act since the property involved in the suit was of value exceeding Rs. 10,000 an appeal from the decision lay direct to the High Court which expression under Section 2 (f) of the Act meant the Judicial Commissioner's Court. Relying upon the extension of India Civil Procedure Code to Goa, Daman and Diu with pro tanto repeal of the Portuguese Code and the aforesaid provisions of the Goa, Daman and Diu Civil Courts Act, 1965, the appellants contended that the appeal had been properly lodged in the Judicial Commissioner's Court especially as the Court of Comarca Court at Margao had ceased to exist, and as regards the bar of limitation it was contended that since Limitation Act was a procedural statute it applied to pending litigation and since the Limitation Act of 1963 had come into force in Goa, Daman and Diu on Jan, 1, 1964 when the suit culminating in the appeal was pending it was the period of limitation provided by that Act which should govern the appeal in question and it was submitted that since the appeal had been filed within a period of 90 days from the date of the judgment and decree as provided by Art. 116 of the Limitation Act, 1963, the appeal was well within time.
(3.) The learned Additional Judicial Commissioner, who heard the matter felt that the question whether the appeal should have been filed in the trial Court under the Portuguese Code or Judicial Commissioner's Court was highly debatable, though he found considerable force in the appellants's contention that the question pertaining to the forum was a matter of procedural law and that after the Indian Code came into force in that Union territory the forum of appeal will be the one provided by the Indian Code and not by the Protuguese Code. However, he refrained from expressing any final opinion on that question because in his view the appeal could be disposed of on the point of limitation raised by the respondents. As regards limitation he took the view that under S. 4 of the Central Act No. XXX of 1965 (which dealt with repeal and savings) though the Indian Code had replaced so much of law enacted in the Protuguese Code as corresponded to it (the Indian Code), the repeal did not affect any right acquired under the repealed part of the portuguese Code and since the right of appeal arose no sooner the lis was commenced under the Portuguese Code it was not affected by the repeal; so also the legal proceedings or remedy in respect of that right could be continued or enforced as if the Indian Code had not passed. He further held that Sec. 32 of the Limitation Act. 1963 repealed only the Indian Limitation Act, 1908 and not other Act; moreover, under sub-sec. (2) of S. 29 of the Act the provisions relating to limitation contained in the Portuguese Code would be 'local law' which had been saved and as such the period of limitation provided by that Code continued to apply and therefore the appeal which was admittedly filed much beyond 8 days from the date of judgment was clearly barred by time. He also took the view that Art. 116 of the Limitation Act, 1963 relates to appeals under the Indian Code while the instant appeal was one under the portuguese Code. In other words, the Additional Judicial Commissioner held that the appeal so far as the period of limitation was concerned was governed by the Protuguese Code and not by Art. 116 of the Indian Limitation Act, 1963.In this view of the matter he dismissed the appeal by his judgment and order dated December 27, 1968. The appellants have come up in appeal to this Court.;