LAXMAN KRISHNAJI BIRKAD MALI Vs. YADAO RAGHOBA CHANDORE MALI

JUDGEMENT

(1.) THE plaintiff sued to recover the money due on a bond executed on 28th December 1932 and repayable on 17th December 1933. The suit was filed on 9th January 1939. To save limitation the plaintiff relies on two payments endorsed on the back of the bond as stated in the plaint. The first is dated 28th December 1933 and the second is dated 1st January 1937. The question is whether the payment made on 1st January 1937 saves limitation under Section 20(1), Limitation Act, in other words, whether it was made before the expiration of the prescribed period of limitation. Prima facie, the period of limitation was three years running from 28th December 1933, and the payment made on 1st January 1937 was made after the expiration of the prescribed period. The Courts however were then closed and the plaintiff could have filed his suit on 2nd January 1937.

(2.) THE decision in Jananklal v. Gulabchand ('28) 15 AIR 1928 Nag 192 is in the plaintiff's favour, and so are the decisions in Visram v. Tabaji ('13) 15 Bom LR 348, Abdul Ghani v. Chiranji Lal ('27) 14 AIR 1927 All 577 and Krishna Singh v. Sardar Ali AIR 1937 Lah 162. Section 3, Limitation Act, provides that subject to the provisions contained in Sections 4 to 25 inclusive, every suit instituted after the period of limitation prescribed therefor by Schedule 1 shall be dismissed. Section 4 however provides that where the period of limitation prescribed for any suit expires on a day when the Court is closed, the suit may be instituted on the day when the Court re-opens. Section 20(1) provides that where payment is made before the expiration of the prescribed period, a fresh period of limitation shall be computed from the time when the payment was made. The view taken in the above cases is that the period prescribed in Section 20(1) means not the period prescribed by the schedule but the period prescribed by the schedule as modified by Section 4. The contrary view has bee0n taken by Jenkins C.J., in Bai Hemkore v. Masamalli ('02) which was followed in Maganlal Harjibhai v. Amichand Gulabji ('28) 15 AIR 1928 Bom 319 by Rankin C.J. in Debendra Nath v. Kartic Prasad ('29) 16 AIR 1929 Cal 68 which was followed in Anisiddin Ahmad v. Kalipada Roy ('31) 18 AIR 1931 Cal 785 and in Shanti Parkash v. Harnam Das ('38) 25 AIR 1938 Lah 234 overruling Krishna Singh v. Sardar Ali AIR 1937 Lah 162. and also in Chidambaram Chettiar v. Venkatasubba Naik ('37) 24 AIR 1937 Mad 367 and apparently by Batten A.J.C. in Nandram v. Ranchhoddas ('22) 9 AIR 1922 Nag 250.