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Madras High Court
Rebala Ramana Reddi vs Rebala Babu Reddi And Ors. on 26 November, 1912
Equivalent citations: (1913) 24 MLJ 96


1. This appeal is against an order of the District Court of Nellore dismissing an application for execution of the decree of the Subordinate-Judge’s Court of Nellore in O.S. No. 15 of 1892. The decree is one for partition and was passed on the 3rd August 1897. There were several intermediate applications for execution presented on the plaintiff’s behalf during his minority by his next friend. One of them was compromised on the 31st October 1910. The plaintiff’s present application ignores the compromise, his case being that it was illegal and not binding on him. The application has been dismissed by the lower Court on the ground that it is barred by limitation under Section 48 of the Code of Civil Procedure, it having been presented more than twelve years after the date of the decree, although within three years after the attainment of majority by the plaintiff. The first question for consideration is whether the plaintiff is entitled to the benefit of Section 7 of the Limitation Act and to reckon the period of limitation for execution of the decree from the date of attainment of majority; and whether apart from that section, there is any general principle of law entitling him to the same benefit on account of his disability arising from minority. Article 182 of the Limitation Act which lays down the general rule of limitation applicable to execution of decrees exempts from its operation cases coming within the purview of Section 48 of the Civil Procedure Code. Section 6 of the Act enacts that “where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned, a minor,…he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the the first schedule;” and as article 182 of the schedule is inapplicable to the case, Section 6 enacting the rule of exemption during the period of minority must also be held to be inapplicable. The District Judge, Mr. Wallace, has dealt with the question in a remarkably able and lucid judgment; but the question really does not admit of any serious doubt on the language of the section. It is unnecessary to consider whether the other general provisions of the Limitation Act contained in Sections 4 to 25 would be applicable or not, where the period of Limitation is prescribed by some special Act and not by the general code of Limitation. Section 6 is expressly limited to cases where the limitation is provided for in the Limitation Act itself. We therefore agree with the judge in holding that the plaintiff cannot claim the benefit of Section 6 of the Limitation Act. It is strenuously contended by Mr. Muthukrishna Aiyar, the learned vakil for the appellant, that apart from that section minority is a well recognised ground of exemption in law from the operation of the law of limitation. He relies in support of this contention mainly on Moro Sadshiv v. Visaji Ragunath (1891) I.L.R. 16 B. 536 and a passage in Bacon’s Abridgment. The Bombay case, it cannot be denied, supports his contention. The question there was the same as in this case. Sargent C.J. observed: “The question referred to us must be decided by the general principle of law as to the disability of minors to which the provisions of the Civil Procedure Code must, in the absence of anything to the contrary, be deemed to be subject. The general principle is that time does not run against a minor, and the circumstance that he has been represented by a guardian does not affect the question.” No authority has been cited in support of the enunciation of the rule that there is a general principle of law that time does not run against a minor. The passage cited from Bacon’s Abridgment is in the following terms. “The rights of infants are much favoured in law; and regularly their laches shall not be prejudicial to them, upon a presumption that they understand not their rights and that they are not capable of taking notice of the rules of law so as to be able to apply them to their advantage; – Hence by the common law infants were not bound for want of claim and entry within a year and a day; nor are they bound by a fine and five years’ non-claim, nor by the Statutes of Limitation, provided they prosecute their rights within the time allowed by the Statute after the impediment removed.” King v. Dilliston (1693) 3 Mod. R. 223 S.C. 17 E.R. 142, is cited as authority for this proposition. After full consideration we have come to the conclusion that the authority relied on in the passage cited does not show that according to the English law, infancy is an answer to a plea of limitation. The question in King v. Dilliston (1693) 3 Mod. R. 223 S.C. 17 E.R. 142, was whether a certain custom was applicable to minors, namely, a custom that the person to whose use a copyhold estate is surrendered shall come in and be admitted after three proclamations or otherwise his land shall be forfeited. It was held that it was not and that therefore if a surrendor be made in fee and the surrenderee die before the next Court, the estate is not forfeited by the infant heir and the surrenderee not coming in after three proclamations. Eyre J. observed “that a feoffment of an infant was no forfeiture at the common law, and that as a particular custom may bind an infant for a time, so it may bar him for ever,” and that the question was whether the custom in question as it was found in general words should bind an infant after three proclamations, “All customs,” he said, “are to be taken strictly when they go to the destruction of an estate;” Strictly, infants were not prevented by the letter of the custom, they were not bound by other customs like this, there was no necessity to construe them to be within the custom. He no doubt observed that, “the right of infants is much favoured in law, and their laches should not be prejudicial to them as to entry or claim upon a presumption that they understand not their right” but he did not say that they were not bound by statutes of limitation. On the other hand he observed “It is admitted that if an infant do not present to a church within six months or do not appear within a year, that his right is bound; but this is because the law is more tender of the church and the life of a man than of the privileges of infancy. So if an office of parkship be given or descends to an infant if the condition annexed in law to such an office (which is skill) be not observed, the office is forfeited. But that a proclamation in a base Court should bind an infant, when he is not within the reason of the custom is not agreeable either to law or reason.” Nor, did either of the other concurring Judges Gregory J. and Dolbin J. make any pronouncement in favour of the exemption of minors from rules of limitation proper. It may be that laches may not be attributable to an infant and that a penalty inflicted for laches may not be enforced on an infant. But laches should not be regarded as the sole or perhaps even the main ground on which rules of limitation are based. Lord St. Leonards observed “all statutes of limitation have for their object the prevention of the rearing up of claims at great distances of time when evidences are lost; and in all well regulated countries the quieting of possession is held an important point of policy.” In Trustees of Dundee Harbour v. Dowgall 1 Macq. H.L. 321 Lord Kenyon described the statutes of limitation as statutes of repose. See also the observations of Lord Redesdale in Cholmondely v. Clinton (1821) 4 Bligh. p. at p. 106 S.C. 4 E.R. Lord Coke says that the limitation of actions was by force of divers Acts of Parliament, although at a very remote time in England there was undoubtedly a stated time for the heir of the tenants to claim after the death of his ancestor and in case of non-claim before the expiration of the time (a year and a day) the claimant was without remedy. Banning in his work on Limitations page 1 observes “the limitation of the times for bringing actions is at the present day entirely dependant on statute.” He states that under the common law the presumption arose after a long time in respect to a legal claim that it had been satisfied. See 4 Brown’s Chancery Cases 115. Eminent Judges have repudiated the notion that limitation is based solely on the ground of laches. In Dalton v. Angus (1881) 6 A.C. 740 at p. 818 Lord Blackburn observed: “This ground of acquiescence or laches is often spoken of as if it were the only ground on which prescription was or could be founded. But I think the weight of authority both in this country and in other systems of jurisprudence shows that the principle on which prescription is founded is more extensive. Prescription is not one of those laws which are derived from natural justice. Lord Stair, in his Institutions, treating of the law of Scotland, in the old customs of which country, he “tells us prescription had no place (book 2 tit 12, Section 9) says, I think truly, “prescription, although it be by positive law, founded upon utility more than upon equity, the introduction whereof the Romans ascribed to themselves, yet hath it been since received by most nations, but not so as to be counted amongst the laws of nations, because it is not the same, but different in diverse nations as to the matter manner and the time of it…. It is both fair and expedient that there should be provisions to enlarge the time when the true owners are under disabilities or for any other reason are not to be considered guilty of laches in not using their right within the specified period, and such provisions there were in the Boman law, and commonly are in modern Statutes of Limitation, but I take it that these are positive laws, founded on expedience, and varying in different countries and at different times.” Angell in his work on Limitation observes “although says Domat, there was no other reason to justify the introduction and use of prescription than that of public policy, it would be just to prevent the property of things from being constantly in a state of uncertainty. Laches like limitation no doubt deprives the plaintiff of his remedy, but it depends upon general principles while limitation depends on express law. Laches may be adapted to the facts of each particular case, but limitation is a matter of inflexible law. A positive rule of limitation must not depend on whether there be laches or no: Courts of Equity in England apart from any rules of limitation refused relief to parties resorting to them for remedies not open to the courts of common law, if they were guilty of laches; but they also followed the Statutes of Limitation by analogy in granting equitable reliefs; although no Statute of Limitations before 3 and 4 Will. IV C. 27 provided in terms for equitable rights or expressly bound the Courts of Equity,” see Darby and Bosanquet on Limitation page 234.

2. Limitation then being the result of statute law, it has been held in England that no exemption from it can be recognised except what the statute itself provides. In Beckforde v. Wade (1805) 11 R.R. 20 the Judicial Committee of the Privy Council held that the fact that the defendants in an action were absent from the realm could not postpone the running of limitation. The Master of the Rolls observed. “The proposition, that this construction, under the doctrine of inherent equity, is put upon our English Statutes of Limitation, is, as I apprehend, altogether, unfounded. General words in a statute must receive a general construction, unless you can find in the statute itself some ground for limiting and restraining their meaning by reasonable construction, and not by arbitrary addition or retrenchment.” He goes on to say, “The true rule on this subject is laid down by Sir Eardly Wilmot in his opinion in the House of Lords on the case of Lord Buckinghamshire v. Drury (1805) 11 R.R. 20 S.C. 34 E.R. 34. He says “many cases have been put, where the law implies an exception; and takes infants out of general words by what is called a virtual exception. I have looked through all the cases, and the only rule to be drawn from them, is, that, where the words of a law in their common and ordinary signification are sufficient to include infants, the virtual exception must be drawn from the intention of the Legislature, manifested by other parts of the law, from the general purpose and design of the law, and from the subject matter of it.’ And he mentions the Statutes of Limitations, as an instance of a case, in which infants would be barred, if it were not for the introduction of the saving clause. Accordingly we find, that in the great case of Stowel v. Lord Zouche (1797) Plowd 353 353 S.C. 75 E.R. 536 upon the Statute of Fines of Henry the Seventh where the question was, whether when the bar by five years non-claim had begun to run in the time of the ancestor of full age, it should continue to run against his infant heir, although there was great difference of opinion among Judges upon that question, the whole argument turns upon the true construction of the statute itself with reference to all the parts of it and to the object it had in view, and not upon any supposed inherent equity, by which infants were to be excepted out of the operation of the Statutes of Limitation. On the contrary it is laid down in that case and laid down without any contradiction ‘for as much as they intended,’ that is the legislature intended, ‘to avoid universal trouble (as the preamble speaks) and to make peace which is to be preferred before all other things, and for as much as they have made provision general, viz., that the fine shall be final, and shall conclude as well privies, as strangers: if the Act had stopped there, it would have bound as well infants, femes covert and the others named in the exception as people of full age and who were void of such defects.’ His Lordship went on to observe referring to the case before him that the absence of the defendants from the realm or even the fact of the Courts of Justice being shut up in times of war were no grounds for excluding the Statutes of Limitation. See also Angell on Limitation page 498 where the opinions of Chancellor Kent and Chief Justice Marshall in America to the same effect are referred to. It is perfectly clear from Beckford v. Wade (1805) 11 R.R. 20 that minority unless expressly provided for in the statute would be no ground of privilege. See Mohummud Bahadoor Khan v. The Collector of Bareilly (1874) 1 I.A. 167. We have no hesitation in saying that the same view must be held in this country also.

3. The earliest statutes of limitation in India therefore made express provisions in favour of minors. See Madras Regulation 2 of 1892, Section 18, Clauses 1, 2 and 3. In Act XIV of 1859 Section 11 provided a general exemption in favour of minors but only in the case of suits. In Act IX of 1871 also the exemption was confined to suits, but a further restriction was introduced by it by limiting the privilege to cases where limitation was provided for in the schedule to the Act. There can be no doubt that the restriction was deliberately made. In Section 7 of Act XV of 1877 the privilege was extended to applications; but the restriction to cases for which the limitation was provided for in the Act was continued. The provision in the present Act is in the same terms. We cannot therefore uphold the argument that there is any fundamental rule of law or justice entitling the appellant to claim that the limitation should run only from the date of his attaining majority. The decision of the Punjab Chief Court in Jhandu v. Mohan Lal 20 P.R. 489 a is in accordance with the view we have taken on the question.

4. It is next contended for the appellant that the application is not barred in so far as the claim for mesne profits is concerned, even if Section 48 of the Civil Procedure Code would be a bar so far as partition is concerned. The argument is that with regard to mesne profits the decree cannot be regarded as complete until they are ascertained; and that the present application may be regarded as one for the ascertainment of the mesne profits and as such should be regarded as one not for execution of the decree but as one in the suit itself to finish the enquiry and make the decree for mesne profits final. And reliance is placed in support of the argument on Puran Chand v. Roy Radhakishen (1891) I.L.R. 19 C. 132, Harmanoje Narain Singh v. Ramprasad Singh (1907) 6 C.L.J. 462, Midnapore Zemindari Co., Ltd. v. Kumar Naresh Narain Roy (1911) 16 C.W.N. 109,Muhammad Umarjan Khan v. Tinat Begam (1905) I.L.R. 25 A. 385 and Waliya Bibi v. Nazar Hasan (1909) I.L.R. 26 A. 623. The decree here was passed when the repealed Civil Precedure Code was in force. It provided that “the defendants do pay to the plaintiff his one-third share of the mesne profits (to be ascertained in execution) from the date of suit 11-8-92 until delivery of the lands or until three years from this date whichever event first occurs.” The direction for the ascertainment of the mesne profits in execution was apparently made under Section 211 of the Code. Section 212 enacted this with regard to mesne profits prior to the institution of the suit “the Court may determine the amount either by the decree itself, or may pass a decree for the property and direct an enquiry into the amount of mesne profits, and dispose of the same on further orders.” Where the decree provided for the mesne profits up to the date of delivery of the property the enquiry had necessarily to be postponed. Section 244 laid down that “questions regarding the amount of any mesne profits OB interest which the decree has made payable in respect of the subject matter of a suit, between the date of its institution and the execution of decree or the expiration of three years from the date of the decree” should be decided by the Court executing the decree. It is argued that the expression ‘the Court executing the decree’ merely designates the Court which is to hold the enquiry into mesne profits and that the provision in 244 does not make the enquiry a matter relating to the execution of the decree. It is not easy to see why an enquiry for mesne profits accruing subsequent to the date when judgment is given by the Court should be regarded as necessary to make the decree itself complete. Where the mesne profits relate to the period before the decree, it may be said that the decree should, strictly speaking, determine all the rights of the plaintiff including the claim to mesne profits up to the date of the deer; but it is doubtful whether this argument can apply to mesne profits subsequent to decree. Whatever the strictly logical view of the matter may be, it appears to us that the object of the provisions of the Code was to enable the Court to separate the question of mesne profits from the claim to the land and to relegate the former to proceedings in execution. It was certainly within the competence of the Legislature to do so; and it was regarded as promoting the convenience of litigants and the Court. According to Section 244 the enquiry need not be held by the Court which tried the suit. If the execution of the decree is transferred to another Court it might be held by such Court. The enquiry may not logically be one relating to the execution of the decree; but in our opinion it was the intention of the Legislature to make it a part of the execution proceedings. This explains the reason for its inclusion in Section 244. The language of Clause (c) of that section” any other question relating to the execution” shows that the enquiry into the amount of mesne profits was also to be regarded as a question relating to execution. An application for the ascertainment of mesne profits must therefore according to the Code be regarded as an application for execution, though it may be that the decree, in so for as mesne profits are concerned would be incomplete until they have been ascertained. It may be right to hold that within the meaning of Section 230 of the repeated Code, the twelve years prescribed therein for the execution of a decree for money would run only from the date when the mesne profits are ascertained; for it may be said that until that is done, it cannot be said that there is a decree for money. In this view the actual decision in Harmanoji Narain Singh v. Ramprasad Singh (1907) 6 C.L.J. 462 may not be open to exception and the observation in Puran Chand v. Roy Radhakishen (1906) I.L.R. 19 C. 132, that the decree is not complete with regard to mesne profits for the purpose of execution until they have been ascertained, may also be unexceptionable; but this does not show that an application for the ascertainment of mesne profits would not be an application for execution as held by the Calcutta and Allahabad High Courts. The Code expressly made it such. Ram Kishore Gose v. Kant Gopi Shaha (1900) I.L.R. 28 C 242, is in accordance with this view. Midnapore Zemindari Co., (Limited) v. Kumara Naresh Narain Roy (1911) 16 C.W.N. 109, no doubt contains an observation that the whole decree including the decree for possession must be regarded as incomplete until the mesne profits are ascertained; but with all deference we are for the reasons already stated unable to agree in this view. It is not supported by the earlier decisions of the Calcutta High Court. It is based partly upon a judgment of the Privy Council in Bagha Prasad Sing v. Lal Sahab Rai (1890) I.L.R. 13 A. 53. But that case does not support the proposition. There although there was a declaration that the original defendants were liable for mesne porfits, the decree did not determine the important question whether the defendants were liable jointly or severally in respect of wrongful occupation. There was no adjudication upon any of these matters until a long time after the original decree and until after the death of the defendants whose representatives were sought to be made liable. The decision of their Lordships was that the representatives not having been made parties to the investigation about mesne profits, they were not liable for the amount adjudged against them. Their Lordships did not decide any question of limitation. The appellant relies also on the decision of this Court in Vydianatha Aiyar v. Subramanian Pattar (1911) 21 M.L.J. 546. There the decree directed that the costs of one of the parties should be paid by the other when ascertained. The ascertainment was not directed to be made in execution proceedings. The Court had no power to give such a direction. The question was when limitation began to run for the execution of the decree. It was held that the decree was complete only when the costs were ascertained. We do not think that the case affords any support to the appellant’s contention here. According to Section 48 of the present Code the execution of all decrees except a decree granting an injunction will be barred after the expiration of twelve years. An application for the ascertainment of mesne profits being in our view an application for execution, we must hold that it is barred by the provisions of the section.

5. But it is contended that this case must be decided according to the provisions of the present Procedure Code which by Order 20 Rule 12 directs that in a suit for the recovery of immoveable property and mesne profits the Court may direct an enquiry as to the mesne profits and should pass a final decree in accordance with the result of the enquiry. The effect of the provision is to make the decree so far as mesne profits are concerned complete only when the amount has been ascertained while not making the rest of the decree incomplete till then. In this view an application for the ascertainment of mesne porfits would not be one for execution of the decree, though the question might then arise whether article 181 would not apply to such an application. We are, however, of opinion that the question whether the application is one for execution or not should be decided in accordance with the provisions of the repealed Code. The effect to be given to a document and to the proceedings of a Court must be decided by the law in force when the document was executed or the proceedings were passed. The decree for mesne profits in this case cannot be regarded as incomplete and incapable of execution on the ground that according to the present Code it would be so regarded. This view is in our opinion in accordance with the decisions discussed at pages 324 to 333 of Maxwell on the Interpretation of Statutes. See also the judgment of this Court in S.A. 117 of 1911.

6. Lastly it is contended that the application is not barred at any rate so far as the recovery of outstandings is concerned in as much as they had not been collected by the defendants at the time of the degree, according to which the plaintiffs are entitled to recover their share when the outstandings are collected. But the application for execution does not state when they were collected or that they have been collected at all. It does not therefore disclose any right on the part of the plaintiff to recover anything from the defendants. In the result the appeal is dismissed with costs.

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