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1860 Supreme(SC) 14
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
MEMBERS OF THE JUDICIAL COMMITTEE,—THE RIGHT HON. LORD CHELMS-FORD, THE RIGHT HON. LORD KINGSDOWN, THE RIGHT HON. DR LUSHINGTON, AND THE RIGHT HON. SIR EDWARD RYAN.
DOORGAPERSAUD ROY CHOWDRY - Appellant
Versus
TARAPERSAUD ROY CHOWDRY - Respondents
On appeal from the Sudder Dewanny Adawlut at Calcutta.
Decided On : December 5, 1860.
Privy Councillor,- Assessors,—The Right Hon. Sir Lawrence Peel, and the Right Hon. Sir James W. Colvile
Continuous pursuit of legal rights through competent courts, even if some proceedings are later found to be procedurally defective, prevents the application of the law of limitation, as such efforts do not constitute an abandonment of the claim.
Headnote:(A) Ben. Reg. III of 1793, sec. 14 - Limitation of suits - Recovery of mesne profits - Suit barred if cause of action arose twelve years before commencement unless the complainant proves a demand and admission, or that the claim was preferred to a court of competent jurisdiction with satisfactory reasons for the delay - Where a party has been continually endeavouring to recover rights through resort to competent courts, the law of limitation does not operate to bar the claim, even if some of the proceedings were later found to be procedurally defective or ineffectual.
Facts of the case:
Parties entered into a compromise deed to divide an estate. A court ordered the parties to conform to the compromise and granted possession. The claimant subsequently sought mesne profits through petitions in a court's miscellaneous department based on a circular order. An order for mesne profits was granted by a single judge, but twenty-one years later, it was determined that the order was not binding as it lacked the concurrence of a second judge. A new suit for mesne profits was then instituted, and the defense argued that the claim was barred by a twelve-year limitation period for all profits accruing beyond twelve years from the date of the suit.
Findings of Court:
The proceedings to recover mesne profits were subsidiary to the original decrees for possession. The claimant was not remiss in prosecuting the claims and had consistently resorted to tribunals to ascertain the amount due. The discovery that a previous order was ineffectual due to a procedural defect did not mean the rights under the original decrees were abandoned.
Issues: Whether the claim for mesne profits was barred by the twelve-year limitation period under the applicable regulation, or whether the continuous pursuit of the claim through court proceedings, despite procedural errors, exempted the claimant from such limitation.
Ratio Decidendi: Erroneous proceedings conducted in a competent court do not operate as a total abandonment of rights. If a party is continually endeavouring to recover their rights by resorting to the courts, they are not ousted from the exceptions provided in the laws of limitation, as the pursuit of the claim remains active.
Result: Decree affirmed with costs.
Legal Category Hierarchy
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practice and procedure
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limitation
- limitation period
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limitation
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property law
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real estate
- mesne profits
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real estate
Judgement
This suit was brought for the recovery of Wasilat, or mesne profits of real estate, and the sole question raised by the appeal was, whether the Respondent was entitled to wasilat from the period of twelve years next before the institution of the suit, according to sec. 14 of Ben. Reg. III. of 1793 , or, whether he was entitled to go back to the year 1829, the date at which by certain deeds of Razenamah and Safeenamah, and an order of Court made thereon, his title to the moiety of the property became perfected.
The facts are fully stated in the judgment. The appeal was argued by
Mr. R. Painter, Q. C, Mr. Leith, and Mr. Maude, for the Appellant, and
Mr. W. Field, for the Respondent.
The authorities cited upon the question of the limitations of the suit, under Ben. Reg. III., of 1793, sec. 14, and Ben. II., of 1805, secs. 1 and 3, cl. 3, to the wasilat, were Troup and Dyce sorurbre v. The East India Company (7 Moores Ind. App. Cases, 104) , Rajah Eva yet Hossein v. Haynd Ahmed Reza (Ib 238.), Prannath Roy Chowdry v. Rookea [@ page
M.I.A. 310] Begum(7 Moores Ind. App. Cases, 323.), Sheoraj Singh v. Munsookh Rai (7 Sua. Dew. Rep. N. W. P. 337), Pudarut Dap v. Futteh Ali (7 Sud. Dew. Rep. N. W. P. 158.) .
Their Lordships judgment was delivered by
The Right Hon. Lord Kingsdown [20th Dec, 1860]—
A suit was instituted by the present Respondent in 1853, and the only question in the case is, whether the Respondent is barred from the prosecution of his claims in this suit by the Indian law of limitation.
It is necessary to the correct understanding of this case to state some of the circumstances under which the suit was commenced and the decree pronounced.
It appears that both the Appellant and Respondent are brothers; their uncle died without issue in 1810 ; their father died in 1821, having succeeded to the property of their uncle, and he left the Appellant and Respondent, his two sons, joint heirs-at-law. The property which so devolved upon them was very considerable, and much litigation ensued as to the division and possession of that property, which was situated in various Districts; to recover each portion of the property lying in various Districts, it would be necessary to institute proceedings in the various Courts having local jurisdiction.
On the 29th of January, 1827, the present Appellant instituted a suit against the Respondent, in the Provincial Court of Calcutta, to recover a certain share in Zillah Jessore, which was, in fact, a very small part of the estates in question. Whilst this suit was pending, the parties to it came to an agree ment to compromise their claims, and on the 4th of April, 1829, deeds of compromise were executed and filed in the Zillah Court —they agreed to divide the estate in certain proportions; and it was further stipulated that, in the event of either of the parties not agreeing to act according to the terms of the compromise, they had no objection to the Courts insisting upon and enforcing the observance of the said compromise.
The Respondent applied to the Collector for an Ameen to make a partition in terms of the above deeds.
On the 24th of April, 1829, the Appellant, he was the Plaintiff in that suit, presented a petition to the Provincial Court, praying that the suit might be struck off the file of the Court, on the ground of the compromise being effected. The Respondent, on the 25th of April, 182y, objected to this petition, and alleged that the compromise was not binding, undue influence having been exercised by the Collector to bring about the same.
The Provincial Court of Calcutta, however, on the 2nd of September, 1829, made the following order that the case be struck off the file, and that the parties conform to their respective engagements; in the event of their not conforming to the same this Court shall insist on and cause them to conform to the conditions of the compromise. The suit was removed from the file on the 2nd of September, 1829, and the value of the stamp returne
