JUDGMENT
John Edge, Kt., C.J.
1. In this case the plaintiff obtained a decree from the Court below. From that decree an appeal was filed in this Court on the 15th April 1884. The plaintiff-respondent died on the 17th September 1885. No application has been made by or on behalf of the appellant to bring upon the record the representative of the deceased plaintiff-respondent, nor has any representative of the deceased plaintiff-respondent, applied to be brought upon the record. The present application, which was preferred on the 20th March 1888, is made on behalf of the mother of the deceased plaintiff-respondent. It is an application for an order of the Court decreeing that the appeal has abated. I consider that the judgment of the majority of the Full Bench in the case of Narain Das v. Lajja Ram I. L. R., 7 All., 693, not withstanding the head-note, simply decided that article 171B of sch. ii of the Limitation Act of 1877 did not apply in that case. That case is on all fours with that now under consideration, so far as the question of limitation is concerned. The result of that decision, I think, must be that art. 178 of sch. ii of the Limitation Act must apply. As three years have not expired since the death of the plaintiff-respondent, and as I do not propose to reconsider the question decided in the case of Narain Das v. Lajja Ram, I, L. R., 7 All., 693, I think that the application is premature and, as such must be rejected with costs.
Straight, J.
2. I am of the same opinion. I was a party to the Full Bench ruling in this Court to which the learned Chief Justice has referred. Any one who will take the trouble to read what I said in that case will find that what I laid down there was that art. 171B of the Limitation Act did not apply to a case like this. I was of opinion, for reasons stated therein, that the word ” respondent ” had, whether from intention or mistake, been omitted from that article, and comparing it with the preceding article, I showed, in reference to Section 582, that it seemed rather as if it had been intentionally omitted. That view has been adopted by five Judges of the Calcutta Court, and the same view has been taken by the Madras Court, I add these remarks for the purpose of showing that when I used the expression at the and of my judgment in that case, ” it therefore appears to me impossible to say that the appellant in that present case has failed to make the application within the period prescribed there for, because no period for making such an application is in fact prescribed at all,” I was limiting my remarks to art. 171B, no other article having been suggested to me, and it not having occurred to my mind that art. 178 of the Limitation Act was applicable. I think that art. 178 is applicable, and that, therefore, where a respondent dies, the appellant has three years from the date of such death, that is to say, from the date ” when the right to make the application ” accrues to him to come into Court and have the heirs of the deceased respondent brought on the record. I concur with the learned Chief Justice the to this application is premature and that it should be rejected with costs
Brodhurst, J.
3. I also concur with the learned Chief Justice.
Tyrrell, J.
4. I concur.
Mahmood, J.
5. The order which I have to make on this application must be the same as that made by the majority of the Court. But I am anxious to guard myself against being understood to hold that the provisions of Section 582 of the Code of Civil Procedure, read with Section 368 of that Code, would not render the word ‘defendant’ as used in art. 171B, sch. ii, Limitation Act, applicable also to the case of the death of the plaintiff-respondent. I say this, of course, with due deference to the rulings to the contrary, which need, however, not be now cited. I dealt with most of those cases in my dissentient judgment in the Full Bench case of Narain Das v. Lajja Ram I. L. R., 7 All., 693. At page 700 of the report I expressed the exact reasons why by dint of the interpretation clause of the Civil Procedure Code, the word defendant occurring in art. 171B, sch. ii of the Limitation Act, must necessarily include a plaintiff-respondent. That was a view in full accord with what was said by Field and Beverley, JJ., in Soshi Bhusan Chand v. Grish Chunder Taluqdar I. L. R., 11 Cal., 694. The ruling in this last case however though apparently not cited or considered, has been dissented from by a Bench of five Judges of the same Court; and all the other cases bearing on this point were collected by me in delivering my judgment in the recent Full Bench case of Muhammad Husain v. Khushalo, ante, p. 223, in which the order of the Full Court was passed on the 23rd January 1888. To the remarks I have made in this last judgment I have nothing to add, though, being bound by the decision of the majority of the Court, I agree in the order which has been made.
Leave a Reply