Applicability of the provisions of Section 5 of Limitation Act.

Sathiadev, J.

1. Plaintiff in O.S. No. 135 of 1979 on the file of First Additional Sub Judge, Pondicherry is the petitioner herein. An Ex Parte decree was passed on 27.1.1981 and defendants filed I.A. No. 824 of 1981 to condone the delay of 46 days under Section 5 of the Limitation Act in filing the petition to set aside the Ex Parte decree; and I.A. No. 825 of 1981 was filed to set aside the ex parte decree dated 27.1.1981.

2. The trial Court set aside the Ex Parte decree and thereupon, plaintiff preferred C.R.P. No. 4555 of 1981, and it was contended that as defendants had withdrawn I.A. No. 824 of 1981; I.A. No. 825 of 1981 should have been automatically dismissed; whereas it was contended by defendants that I.A. No. 824 of 1981 was withdrawn on a suggestion made by the Court that such an application was not necessary in accord with the law of limitation applicable to Union Territory of Pondicherry.

3. The learned Judge by remitting the matter to the trial Court, had restored to it's file I.A. No. 824 of 1981, and directed the matter to be considered a fresh on all aspects.

4. The Court below held that in view of the decisions rendered in Chockalinga Mudaliar v. Manivanna Pillai (1978)2 M.L.J. 544; and Justiniano v. Antonio, under Section 29(2) of the Limitation Act, 1963, the French Law in Pondicherry is the 'local law' and saved by the said Act, and therefore, other provisions of the Limitation Act are not applicable to Pondicherry and that time limit to set aside the Ex Parte decree being 30 years, there was no need to file an application under Section 5 of the Limitation Act. During the pendency of the proceedings, the legal representatives of first defendant having been brought on record, they are referred to as defendants in the suit.

5. Mr. R.S. Venkatachari, learned Counsel for the plaintiff, submits that the said decisions referred to by the Court below are unsound and do not take into account the legal concept of applicability of laws made in India to the Union Territory of Pondicherry from the time of it's defects merger; and the suit having been filed in 1979, after C.P.C. having been made applicable, no provision of the French Code Civil could be operative, and that the Indian Limitation Act, 1963 being a procedural enactment, a Civil Court adopting the procedures laid down in the C.P.C. cannot, but implement the provisions of Indian Limitation Act, 1963. To substantiate these contentions, he would first refer to De Facto Agreement dated 21st October, 1954, which states.

Judicial proceedings instituted prior to the De Facto transfer shall be continued, until a final decision has been reached, in conformity with the laws and regulations in force at the time of institution of such proceedings.

6. During the earlier part of his arguments, he took considerable pain to refer to 'Dicery a Morris on'. 'The Conflict of Laws' for understanding the concept of the 'Lex Fori', but in the concluding stages, having come across two decisions in Muthukkanni Mudaliar v. Andappa Pillai (1954)2 M.L.J. 731 : 67 L.W. 1083 (F.B.) and M/s. Cadar Constructions v. M/s. Tara Tiles , he would submit that these decisions bring about the principles which he had attempted to bring about by relying upon the materials he had earlier argued out.

7. Muthukkanni Mudaliar v. Andappa Pillai (1954)2 M.L.J. 731 : 67 L.W. 1083 (F.B.), holds that a suit could be instituted in a Court within whose local jurisdiction defendant resides and the cause of action had arisen; and in such a suit, the provisions of Statutes of Limitation in force in the country of that forum, that is, the 'Lex Fori' would apply. By referring to Dicery's Conflict of Laws, it was pointed out that it is well settled general principle that when actions are initiated in a Court, all matters of procedure applicable by law made by that Country in which action is brought will have to be applied. It was then held:

... So, the statute of Limitation in force in the country in which the action