Authored By : Francis Maclean, Banerjee

Francis Maclean, K.C.I.E., C.J.

1. This is an appeal by the representatives of thejudgment-debtors against the decision of the Subordinate Judge of the24-Pergunnahs, dated the 17th of April 1899, refusing to set aside the sale ofcertain property which had been sold under a decree, and which was purchased bythe respondents, who were themselves the decree-holders, but who had liberty tobid.

2. The facts may be shortly stated. The decree for sale wasdated the 13th of February 1896, and was made in a suit to enforce an equitablemortgage. The property in due course of execution was ultimately sold, and, asI have already said, the decree-holders became the auction-purchasers. The salewas confirmed on the 22nd of February 1897. On the 8th of September 1898, thedecree was at the instance of some of the defendants set aside under Section108 of the Code of Civil Procedure. On the 22nd of February 1899, the presentapplication was made by the representatives of the judgment-debtor and thelearned Subordinate Judge refused to set aside the sale. I may add, though inmy opinion it does not affect the matter for present purposes, that on the 16thof December 1899, the same decree was again made in the presence of all theparties.

3. Upon this state of facts two questions have been argued,first that the case does not fall within the provisions of Section 244 of theCode of Civil Procedure, and that the present appellant ought to haveinstituted a separate and independent suit to set aside the sale, and,secondly, that as the sale has been confirmed, it cannot now be set aside. Uponthe first question the tendency of the decisions in this Court, a tendencywhich has met with the approval of the Judicial Committee of the Privy Council,is to place a wide and liberal construction on Section 244 of the Code, and notto drive the parties to an independent suit, unless the case be clearly outsidethe scope and purview of the section. In support of this view I may refer tothe cases of Doyamoyi Dasi v. Sarat Chunder Mozoomdar I.L.R (1897) 25 Cal, 175 [LQ/CalHC/1897/82] ;Maharani Beni Prosad Koeri v. Lakhi Rai (1898) 3 C.W.N., 6; and to Durga CharanMandal v. Kali Prasanno Sarkar I.L.R(1899) 26 Cal, 727 [LQ/CalHC/1899/52] . These cases appear tome to establish that the case falls within Section 244 of the Code, as Iconsider it does.

4. As regards the second point, viz., whether,notwithstanding the confirmation, the sale ought to be set aside, the fact thatthe decree-holder is himself the auction-purchaser is an element ofconsiderable importance. The distinction between the case of the decree-holderand of a third party being the auction purchaser is pointed out by theirLordships of the Judicial Committee in the case of Nawab Zainal-ab-din Khan v. MahommedAsghar Ali : I.L.R., 10 All., 166, and also in the case ofMina Kumari Bibee v. Jagat Sattani Bibee I.L.R (1883) 10 Cal., 220, which is aclear authority for the proposition that where the decree-holder is himself theauction-purchaser, the sale cannot stand, if the decree be subsequently setaside. I am not aware that this decision, which was given in 1883, has sincebeen impugned.

5. I ought perhaps to refer to the case of Gowree Boyjo v.Jodha Singh (1873) 19 W.R., 416, as some reliance was placed upon it by thelearned vakil for the respondent, It is sufficient to say that thecircumstances of that case were very different from those of the present, andthat it cannot be regarded as an authority against setting the sale aside.

6. I have now dealt with the points which have been urgedbefore us, and for the reasons I have stated, I consider the view taken by theCourt below cannot be supported, and that the appeal must be allowed withcosts.

Banerjee, J.

7. I am of the same opinion.

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Set Umedmal and Ors. vs. Srinath Ray and Ors. (21.03.1900 -CALHC)



IN THE HIGH COURT OF CALCUTTA

Decided On: 17.07.1900

Appellants: Kunja Behary Singh

Vs.

Respondent: Surendra Kumar Basu

Honble Judges/Coram:

Francis Maclean, K.C.I.E., C.J. and Banerjee, J.

Subject: Limitation

Subject: Civil

Catch Words

Mentioned IN

Citing Reference:

Affirmed

2

Distinguished

2

Case Note:

Limitation - Presentation of a plaint, insufficientlystamped--Plaint not rejected, but the Court ordered to put in the deficit Courtfee within a certain time--Effect of such an order--Court Fees Act (VII of1870), Section 28--Civil Procedure Code (Act XIV of 1882), Section 54--InterestAct (XXXII of 1839)--Whether a Court is to allow interest from the date of thedebt, where there is no contract to pay, and no demand made for payment ofinterest.

JUDGMENT

Authored By : Francis Maclean, Banerjee

Francis Maclean, K.C.I.E., C.J.

1. Two points only have been raised upon this appeal. Thequestion of whether or not the plaintiff and defendant were partners, has veryproperly not been pressed before us. The first point we have to determine is aquestion of limitation, and it arises in this way. There had undoubtedly beenmoney transactions between the plaintiff and the defendant, and the former hadundoubtedly lent the latter Rs. 1,000 for which he now sues, and on the 1lth ofJune 1894 the defendant gave an acknowledgment in writing of the debt, whichadmittedly would take the case out of the Statute, if the suit were institutedwithin 3 years from that date.

2. The question then is, when was the suit instituted Theplaintiff says on the 7th June 1897, the defendant says on the 15th June 1897.If on the former date, the suit is not barred; if on the latter, it is. Whatthen are the facts

3. On its face, the plaint purports to have been filed onthe 7th June 1897 and this is what happened.. The plaint was undoubtedlypresented in the Court of the Munsif on the 7th of June 1897, but it wasinsufficiently stamped. The plaint was not rejected but the Munsif made, as 1think he had power to do, under Section 28 of the Court Fees Act, this order:"The plaintiff to put in the deficit Court fee within 15 days." Thefurther Court fee was paid on the 15th June 1897. Which then is the date of theinstitution of the suit, the 15th or the 7th of June 1897 I am satisfied thatthe date must be taken to be the 7th June; not the 15th.

4. Various authorities have been cited to us upon the point,but there are two authorities, in this Court, which are distinctly in point,namely, the cases of Huri Mohun Chuckerbutty v. Naimuddin Mahomed I.L.R (1892)20 Cal., 41 [LQ/CalHC/1892/62] , and Man Sahu v. Chhatri Das I.L.R (1892) 19 Cal., 780. 1 agreewith the reasoning and the conclusion of these cases, and I propose to followthem. They are consistent with the purview of Section 28 of the Court Fees Act,with Section 54 of the Code, and I think I may add with common sense. The othercases in this Court do not deal with the precise question now under discussion,and I, therefore, do not think it necessary to deal with them in detail. Idecide this point of limitation which apparently was not raised in the Courtbelow against the appellant.

5. The second point is that the defendant ought not to havebeen charged with interest before suit and I think the appellant is right uponthis point. It is clear that this case does not fall within Act XXXII of 1839,the debt does not fall within the description in the first alternative of thesection, nor does it come within the second alternative, for there was nodemand of payment made in writing, least of all was there any demand givingnotice to the debtor that interest would be claimed from the date of thedemand. The case, therefore, is not within the Act, nor has any argument beenaddressed to us based upon Section 73 of the Contract Act. It is difficultthen, to see upon what ground interest has been allowed on the debt before suit,and it must be disallowed. The plaintiff, however, is clearly entitled tointerest from the date of the institution of the suit, and this has not beendisputed. The decree, therefore, of the Court below must be varied by omittingtherefrom any order for payment of interest before suit.

6. As the victory is a divided one, there will be no costsin this Court. Each party will pay his own. In the lower Court the costs willbe proportionate.

Banerjee, J.

7. I am of the same opinion. I only wish to add a few wordswith reference to the question of limitation. Of the cases in this Courtbearing upon the point, the two that have been referred to in the judgment ofthe learned Chief Justice quite support the view in favour of the respondent,that Section 28 of Act VII of 1870 saves the case from being barred bylimitation, as the second paragraph of that section provides, that upon adocument insufficiently stamped having been received through mistake orinadvertence, if the deficiency in the stamp is supplied within a time to befixed by the Court, the document and every proceeding relative thereto shall beas valid, as if had been properly stamped in the first instance. There is onlyone case in this Court which was referred to in the argument of the learned vakilfor the appellant, namely, the case of Yakutunnissa Bibee v. Kishoree Mohun RoyI.L.R (1891) 19 Cal., 747 [LQ/CalHC/1891/76] , as lending support to his contention. But that caseis distinguishable from the present. That was a case in which a memorandum ofappeal had been presented on insufficient stamp; then the deficiency wasordered to be supplied within a certain time; it was not supplied within thetime first allowed; then an extension of time was granted; and the deficiencywas supplied before the expiry of the extended time. But at the hearing of thecase the Lower Appellate Court held that the memorandum of appeal was presentedout of time. Against that decision there was a second appeal preferred to thisCourt; and this Court held, having regard to the circumstances of that case,and no doubt also to the fact of the Lower Appellate Court having held that theappeal was presented out of time, that the case did not come within either thespirit or the letter of Section 28 of the Court Fees Act. That case is no authorityfor saying that in this particular case in which the plaint was entertained inthe first instance and the deficiency in the Court fee was allowed to besupplied, and the case was tried on its merits, we must hold in second appealthat the Courts below were wrong in entertaining the suit, and that the LowerAppellate Court was wrong in holding that the suit was not barred bylimitation. That case was decided with reference to its own facts, and is notreally in conflict with the two other cases to which reference has been made bythe learned Chief Justice. As for the case of Venkatramayya v. KrishnayyaI.L.R. (1897) 20 Mad., 319, that also is distinguishable from the present,because there the plaint was returned in order that it might be presented againupon a proper stamp and the learned Judges held that the case was one thatcould not come within the scope of Section 28 of the Court Fees Act.

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Kunja Behary Singhvs. Surendra Kumar Basu(17.07.1900 - CALHC)