William Comer Petheram, C.J.

1. This is an appeal from an order of Mr. Justice HILLrejecting an application by the appellant, the defendant in the original suit,for the refund of the amount of the costs paid to the Sheriff of Calcutta, orthat the plaintiffs costs in the suit in which the execution took place shouldbe taxed. The learned Judge rejected the application on the ground that it wasmade more than three years from the time when the right to make it accrued, andthat it was within the provisions of the Indian Limitation Act, Section 4, andClause 178 of the second schedule. It is not disputed that the application iswithin these provisions, and the only question is whether it was made more thanthree years from the time when the right to make it accrued.

2. The money in question was paid or deposited with theSheriff on the 27th of November 1889, and if the 27th, the day on which thepayment was made, is excluded under Section 12 of the Act, and the 27th ofNovember 1892 under Section 5 as being a Sunday, the last day for making theapplication was Monday, the 28th November 1892. It appears that on that day theappellant took out a summons calling on the respondent to attend the Judge inchambers on the 5th of December on the hearing of the application for therefund of the money, or to tax the bill, that on the same day he caused twoCourt stamps, one of the value of Rs. 2, and one of the value of Rs. 5, to beaffixed to the summons, and on the same day obtained the signature of theRegistrar to it. On its face it bears date the 28th of November 1892, and theonly question we have to consider is whether the application was made withinthe meaning of the Limitation Act on the day on which the summons was signed bythe Registrar, and on which it bears date or on the day when the matter camebefore the Judge, i.e., on the 5th December, a day which was more than threeyears from the day when the right to apply accrued. We think that theapplication was not made until the 5th of December and that the Judge was rightin rejecting the application as barred by limitation. The summons to attend thehearing of the application is the act of the applicant only and is merely anotice, signed by the Registrar at his request, that the application will bemade on the day mentioned, i.e., December 5th, and is not the act of the Courtreceiving or taking cognisance of the application as would perhaps be the caseif it were a rule nisi to show cause issued by the Court after hearing thestatement of the applicant. We have caused enquiries to be made in the officeand find that the Rs. 2 stamp represents the fee for filing the summons whichin ordinary course would not have been done until December 5th, when it came onfor hearing, and the Rs. 5 stamp represents the fee for the hearing and theorder, and that no fee is payable for the issue of the summons or for thesignature of the Registrar, Under these circumstances we think that noapplication was made to the Court until the application of December 5th whichwas made in pursuance of the notice given by the summons, and as that was morethan three years from the time when the right to make it accrued the learnedJudge was right in rejecting the application, and this appeal must be dismissedwith costs on scale No. 2.

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Kassy Nath Sett vs.Khetter Mohun Sing (19.07.1893 - CALHC)