1. This is an application under Rule 67, Chapter XXXVIII ofour Rules, by Messrs. G.C. Chunder and Co., a very well-known firm of Attorneysof this Court.

2. One Lattulal Mullick was a client of that firm whichconducted a suit on his behalf, being Suit No. 56 of 1912. Lattulal died on the9th February 1913. The bill of costs was taxed on the 4th September 1913. It wasafter that that Mr. B.K. Bose was taken in as a partner in that firm on 1stJanuary 1914. Mr. G.C. Chunder, the senior member of that firm, died on 3rdJuly 1914, his son Babu Raj Chunder Chunder, who was also a partner, died on5th July 1915, and Babu Lakhi Narain Khetri, another partner of the firm, diedon 5th August 1917.

3. The summons for this application was taken out on 10thMay 1918 for hearing on 15th May 1918. The present members of the firm are Mr.B.K. Bose and two others, who were not originally members of that firm. Whenthe application came before me, the representatives of Lattulal appeared andcontested the application on two grounds, viz., that the application was barredunder Article 181 of the present Limitation Act and that the present firm ofG.C. Chunder and Co. was not entitled to make the application under Rule 67. Onthe first day of the hearing time was taken by the applicants to meet the caseof limitation, so far as I remember, on the ground that there had been anacknowledgment of the debt by the representatives. Further affidavits have nowbeen put in by the applicant firm in which the case presented before me is thatthe representatives promised to pay and that it was in fact a novation. Insupport of the contention of the representatives of Lattulal, it was statedthat Article 181 of the Limitation Act is now in a form which makes it verygeneral and that it ought not to be restricted to applications under the CivilProcedure Code. As against this contention Mr. Justice Davars ruling in Wadia,Gandhy Co. v. Purshotam Sivji 32 B. 1 ; 9 Bom. L.R. 508 was relied upon. Theprovisions of Article 181 were first introduced by the Limitation Act of 1877.Article 178, where the words were, "by the Code of Civil Procedure, Section230." The present Civil Procedure Code is an Act of 1908 and the Articlenow stands with the words "by Section 48 of the Civil Procedure Code,1908." There is practically no difference between the two Articles. It washeld under the old Article that the general words must be construed with somelimitation, having regard to the words that follow, viz., the words abovequoted, and that the applications there dealt with were, therefore,applications ejusdem generis. A large number of decisions of this Court and ofother Courts support this view, but the case of Chand Monee Dasya v. SantoMonee Dasya 24 C. 707 ; 1 C.W.N. 534 ; 12 Ind. Dec. (N.S.) 1140 indicates asomewhat different view. It deals with an application under Section 173 of theBengal Tenancy Act, but holds that Article 178 of the Limitation Act, 1877, isapplicable. Article 166 of Act IX of 1871 (which was the previous LimitationAct) referred to the execution of orders of Revenue Courts. In the Act of 1877there is no section corresponding to Article 166, yet it was held that Section178 was applicable in the case above referred to. With the exception of thatcase practically all the other cases take the same view, but I do not want todiscuss the matter at any great length. The question before me is whetherArticle 181 applies to applications under our Rule 67, Chapter XXXVIII. In theBombay case Wadia, Gandhy &c Co. v. Purshotam Sivji 32 B. 1 ; 9 Bom. L.R.508 it has been held that that Article does not cover applications of thiskind. It follows an earlier Bombay case, Abba Haji Ishmail v. Abba Thara 1 B.253 ; 1 Ind. Dec. (N.S.) 168. The decision of Davar, J., is of 1907 and sincewe have taken our rule from the Bombay Rules, I think it is only right tofollow the decisions governing this matter of the Bombay Court, especially, asthe same view has been taken there for over 40 years. I, therefore, bold thatArticle 181 of the Limitation Act does not cover applications of thischaracter, but it is a very different proposition whether unlimited time can begiven to a party making an application under that section. If there is nospecial rule of limitation, discretion has to be exercised in grantingapplications of this character which are of a summary nature. The rule itselfprovides an alternative relief viz., relief by suit, and such a suit can onlybe instituted within the time given in the Limitation Act, Article 84, and it,therefore, seems to me that in exercising discretion with regard to suchapplications where a question of lapse of time is raised, it must be consideredwhether the time allowed by Article 84 ought not to cover applications of thischaracter.

4. The next point is as regards the position of the presentfirm of G.C. Chunder & Co. It seems to me that an application of thischaracter for payment can only be acceded to in a summary procedure where thereis no contest or doubt that the parties applying are capable of giving a fulldischarge for the amount claimed. Lakhi Narain Khetri is dead and has leftexecutors who represent his estate. It is stated in the affidavits relied uponby the applicants that the representatives of Lakhi Narain are agreeable tojoin in giving a discharge to the representatives of Lattulal, but it is amatter which clearly involves an enquiry. An order made under this rule has theeffect of a decree and if there is any contest between the parties whichinvolves an enquiry, it ought hardly to be dealt with in a summary manner. Inaddition to that, the case now made is one of novation. In the case decided byDavar, J., relied upon by the applicants, I find the following passage:

The rule itself makes a distinct provision for referring theparties to a suit and this course the Judge in Chambers would, I apprehend,adopt if the client set up some special contract or arrangement with thesolicitor which the solicitor denied or where, for instance, the client pleadedpayment or satisfaction which was not admitted or where, generally speaking,the client disclosed a defence in showing cause which would necessitate thetaking of oral evidence.

5. I do not think that I can go into the question ofnovation in a summary application of this character and, therefore, I refer theapplicants to a suit and cannot accede to the present application. Havingregard to the fact that there is a sum of money still due to that firm, I willmake no order for costs against them.

.

Lakhimoni Dassi vs.Dwijendra Nath Mukherjee (20.06.1918 -CALHC)