JUDGMENT

Markby, J. - It is in no way necessary, in the view I take, to express any opinion on the point, whether if the defendant wished to raise the defence of the Act, he was bound to raise it in the mode pointed out by Rule 19, because it is stated in this case, that he did not raise it at all. And I by no means say that even if this was a question of jurisdiction, it necessarily follows that the Judge was bound or competent to notice it; but upon that I need express no opinion, because I am of opinion, that it is not in any sense a question of jurisdiction; that the Judge has no jurisdiction, in the strict sense of the word, seems to me hardly capable of argument. If so, all the proceedings before him would foe coram non judice, and void, his decision in favour of the defendant worthless, and we, sitting here, should have no jurisdiction to hear this case. What I apprehend is meant is this:--That there is something prohibitory in the language of Act XIV, which requires the Court, whether the defendant raises the question or not, as soon as it appears that the case falls within any one of the rules of limitation laid down by the Act, to call upon the plaintiff to bring the case within one of the exceptions, and if he fails to do so, to decide the case in favour of the defendant. There is, it is true, great conflict between the decisions of the Courts in this country upon various matters connected with [08] the law of limitation, and the procedure by which that question can be raised; but I do not consider it necessary to examine them at length, because I consider that there is a decision of a Superior Court, which is conclusive on the point now before us.

2. The law which governed this question generally in India, prior to the passing of Act XIV of 1859, is contained in Regulation III of 1793, Section 14, and Regulation II. of 1805. If that law were now in force, and the matter were res integra, I confess there would be no slight ground for contending that there has been an actual legislative prohibition, whenever limitation applies, binding upon the Judge in all cases, whether the parties choose to take advantage of it or not, and which he is bound to notice at any stage of the case at which he first discovers it. The language of the earliest Regulation on the subject, that contained in the plan for administration of justice in 1772, and of several subsequent Regulations prior to 1793, is very similar to that of the Regulation of that year, and all are strongly prohibitory. The Regulation of 1793 is as follows: (reads).³ By Regulation II of 1805, the application of these provisions is somewhat modified; but there is nothing which affects the previous Regulation in respect of the matter now under consideration. The words of Section 1 of Act XIV of 1869, are (reads). See ante 49, Note 2. It will be seen from a comparison of the language of the Regulation of 1798 with that of Act XIV of 1859, how much stronger the earlier provision is than the later; the former provision is addressed directly to the Courts themselves and they are expressly" prohibited from hearing, trying, or determining the merits of any suit whatever," after the period of limitation has expired. The latter is the language of the English Statute of Limitation, which, in the year 1859, had received a well-known and well-defined construction, namely, that it constitutes only a defence which the defendant must put forward, if he wishes to rely on it.

3. Whilst the Regulation of 1793 was in force, in the year 1835, a suit was brought by certain persons, eventually represented by Musst. Imam Bandi and often, against one Hargobinda Ghose, to recover certain lands, which the plaintiffs claimed as part of their mouza Akbarpore. The defendant claimed to hold, these lands as part of his mouza Raipore Hussun, and the Zillah Court decided the ease in favour of the plaintiff. The case came up to the Sudder Court on appeal, and Mr. Wigram Money reversed the decision of the