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Calcutta High Court
Dhonessur Kooer vs Roy Gooder Sahoy on 22 February, 1877
Equivalent citations: (1877) ILR 2 Cal 337
Author: R Garth
Bench: R Garth, Kemp, Macpherson, Markby, Ainslie


Richard Garth, C.J.

1. The judgment which I am about to pronounce is concurred in by Markby and Ainslie, JJ.

1. We are of opinion that the periods of limitation prescribed in the 2nd Sched. of the Act of 1871 are to be computed subject to the provisions contained in the body of the Act. The schedules form a part of the Act, and must be read together with it for all purposes of construction.

2. We think that the word ‘suits’ in the Act of 1871 was not intended to include ‘applications.’ In the Act of 1859 the word might have had a more extended meaning; but in the Act of 1871 a distinction seems to have been carefully drawn between ‘suits,’ ‘appeals,’ and ‘applications’; each of these subjects being separately dealt with, and in different divisions of the schedule.

3. It appears to us, however, that, in the special appeal which is the subject of this reference, the Courts below were wrong in refusing the application of the decree-holder upon the ground that she was barred by lapse of time. It was obviously the intention of the Act to give the decree-holder three years, and not less than three years, from the time of his former application, for the purpose of making a fresh one. And the only way of carrying out that intention, and putting a reasonable construction on the Act, 4s by excluding the day upon which the former application was made from the computation of the three years. It could hardly have been the intention of the Legislature that the three years’ limitation should begin to run before the first application had been made; and yet this would be the necessary consequence of the construction which has been adopted by the Courts below.

2. It is perfectly true that the provisions of Section 13 do appear to give some colour to that construction; and it is impossible to construe the words in question in either way without some apparent inconsistency; but by reading the phrase at the head of the schedule, ‘time when the period begins to run’ as meaning time from which the period begins to run,’ we think we should be doing no real violence to the language of the Act, and that we should be, undoubtedly, carrying out the intention of the Legislature.

3. In our opinion, therefore, the application was made by the decree-holder in due time: the judgments of both the Lower Courts should be reversed; and the case should be remitted to the Court of first instance to be dealt with upon its merits.

4. The appellant will be entitled to his costs in this Court as well as in the, Courts below.

Kemp, J.

5. We agree in thinking that an ‘application’ is not a ‘suit’ within the meaning of the Limitation Act. But we are unable to say that we concur in the rest of the judgment just delivered. We think, nevertheless, that the result arrived at is probably in accordance with the real intention of the Legislature.

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