R.R.Misra - (1.) THIS defendant's second appeal arises out of a suit filed by the plaintiff-respondent for repurchase of the house situate in village Patseni on payment of Rs. 2,000/- to the defendant. The said suit has been decreed by both the courts below.
(2.) THE relevant facts of this case are as follows;- On 26-6-1970 the plaintiff executed a registered sale deed Ext. 1 for Rs. 2,000/- in respect of the said house in favour of the defendant. THE deed has been styled as a sale-deed. At the same time it contains a covenant that if after three years and before the expiry of five years from the date of sale-deed, the vendor pays to the vendee a sum of Rs. 2,000/-, the vendee should convey the property to the vendor, it was further stipulated that the said condition would be void after the expiry of the period of five years. Admittedly, the said five years were to expire on 28-6-1975. THE courts below have also recorded a finding that the plaintiff did not approach the defendant with the aforesaid sum of Rs. 2,000/- either before 28-6-1975 or even thereafter. All that the plaintiff did was that since civil courts remained closed from 3-6-1975 to 2-7-1975 due to summer vacation hence on the reopening day of the court i.e. 3-7-1975, the plaintiff filed the instant suit. THE lower appellate court has, however, held that the suit was filed within time and neither the right, nor the remedy could be considered as extinguished because the non-filing of the suit stemmed not from any act or commission of the plaintiff but from the tact that the court was in recess and all that he could do, namely filing of the suit on the date on which the court re-opened, was done by him. I have heard Sri H. S. Sahai, learned counsel for the appellant. His submission that the aforesaid approach of the lower appellate court is erroneous in law. in support of his submission learned counsel for the appellant relied upon a decision in the case of Hani Raza Khan v. Mst. laiba Begum, 1922 AIR Oudh 145. After hearing the learned counsel tor the appellant I find that there is sufficient force in the said contention in as much as what was required to be done under the stipulation was the act of the plaintiff to have tendered the amount of Rs. 2000/- to the defendant or on before 28-6-1975. Admittedly, the same has not been done. 1 find that there is a distinction between an act of a party and the relief prayed for by filing a suit. Filing of a suit in the court of law is only a remedy and it cannot be equated with an act of a party of tendering the money within the stipulated period which the plaintiff has admittedly not done in the present case. The said distinction unfortunately has been missed by the Courts below. In this situation, in my opinion, the plaintiff cannot get any advantage of the fact that the court was in recess on 28-6-1975 or thereafter. To my mind, by virtue of the provisions of Section 5 of the' Limitation Act and Section 10 of the General Classes Act, limitation for seeking remedy only is extended under the aforesaid provisions. The said provisions have nothing to do, as I have already indicated above, with the act of the party to do an act as stipulated for and that too within the period of stipulation. Thus on the admitted facts of this case, since the plaintiff did not tender the sum of Rs. 2,000/- to the defendant on or before 28-6-1975, she was not entitled to a decree of re purchase of the house in question, in this view of the matter, in my opinion, the judgment and decree passed by both the courts below deserve to be set aside. In the result, the second appeal succeeds and is allowed with costs. The judgment and decree passed by both the courts below are hereby set aside and the plaintiff's suit is dismissed with costs throughout. Petition dismissed.;