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Report No. 89

32.91. Earlier, the High Courts of Lahore,1 Allahabad2 and Bombay3 had held otherwise.-

The change in the phraseology of the third column was noticed by the Madras High Court4:

"The reason for omission was probably the change which section 144, clause (2), C.P.C., 1908 introduced, as a separate suit for recovery of such profits was barred by that section."

1. Basheshar Das v. Dizvan Chand, AIR 1933 Lah 615.

2. Ubaid-Ullah Khan v. Abdul laid Khan, AIR 1937 All 481.

3. Dullabhbhai Hansji v. Gulabbhai Morarji, AIR 1938 Born 158.

4. Rangaszvami v. Alagayammal, AIR 1915 Mad 1133.

32.92. Supreme Court judgment as to restitution.- The Supreme1 Court has since held that an application for restitution under section 144, C.P.C. is an application for execution of a decree and is therefore governed by Article 182, Limitation Act, 1908 (present Article 13.-and not by Article 181 of the Limitation Act, 1908 (present Article 13.-a residuary article of limitation-for applications. This position needs no change.

1. Mahijibhai v. Manibhai, AIR 1965 SC 1477.

32.93. The Calcutta High Court1 has held that the true test for determining when a cause of action has accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful conclusion. Carrying on this analogy of "cause of action" to the Limitation Act, the Court held that a plaintiff who could sue for mesne profits for the period from 1913 to 1918 only on 22nd June, 1918 is not debarred from maintaining the suit which was instituted on 28th April, 1921.

1. Dwijendra Narain Roy v. loges Chandra De, AIR 1924 Cal 600.

32.94. However, the general trend is represented by an earlier Allahabad judgment1 which ruled that the period of limitation cannot be suspended once it has begun to run (unless that suspension is itself provided for in the Limitation Act) and that the plaintiffs are not entitled to get a decree for mesne profits for more than three years prior to the date of the suit:

"It would be dangerous to lay down generally that there is some principle outside the Indian Limitation Act under which Limitation can be suspended. Such a conclusion would be quite contrary to the intention of the legislature."

1. Ram Charan Sahu v. Mata Prasad, 1927 ILR 49 All 565 (573).

32.95. Their Lordships of the Privy Council in the case of Soni Ram v. Kanahaiya Lal, 1913 ILR 35 All 227 (237) (RC), themselves remarked that there was nothing in the Indian Limitation Act which would justify the Board in holding that once the period of limitation had begun to run it could be suspended. Their Lordship considered that if they were to hold that by some reason the period of limitation was suspended, they would be deciding contrary to the express enactment of section 9 that 'when once time has begun to run, no subsequent disability or inability to sue stops it'.

This remark of their Lordships clearly indicates that the period of limitation cannot be suspended once it has begun to run, unless that suspension is itself provided for in the Act. We are, therefore, unable to accept any universal principle of suspension of limitation outside the Limitation Act.

32.96. No change as to starting point.- The Calcutta High Court1 ruled in 1908 that the words "when the profits are received" mean "when the profits are actually received". As the point has not recurred in recent cases, there appears to be no need to suggest any amendment on that score.

1. Peary Mohan Roy v, Khelaram Sarkar, 1908 ILR 35 Cal 996.

32.97. Starting point in regard to agricultural land.- Most of the suits under this article coming from the mofussil relate to agricultural property and the point of time from which limitation should be deemed to be running (in regard to mesne profits of agricultural land) became a matter of controversy.

Unlike the occupant of a tenement or a building (the rent whereof is payable on a fixed date of a month), a person in possession of an agricultural farm would be cutting the crops, drying them and selling them in the Mandi at various times of the year, and, depending upon the fertility of the soil, might reap two or three crops a year. When the Draft Bill of the 1877 Act was circulated for comments, two views were expressed. The National Archives File for the 1877 Indian Limitation Bill contains a summary of the various opinions:

"Balu Opendro Nath Mitra, Government Pleader, Dacca is of the opini.-and in this opinion the judge of that District by whom he was consulted, concu.-that the time allowed (three years) should be at least six years, if not twel.-the time allowed for a suit for the recovery of the land from the wrongful holder; and that the cause of action for profits receivable in each year, should be, held to accrue on the first of the following year. In any case the judge thinks that time should begin from when the profits were "receivable", not "received", whatever the number of years the legislature may allow.

Mr. W.J. Money, Officiating Judge of Maimansingh, said the clause is very generally worded and it is not clear whether it is applicable to suits for mesne profits. Added that it would seem, from the time when the period begins to run being fixed to be "when the profits are received", that the clause is not applicable to cases of dispossession and suits for mesne profits thereon; inasmuch as the rule for the calculation of the latter is that their determination is not limited to the amount actually received, but to that which, according to the assets, might with due care and diligence, have been realised, and the period of limitation dates from the time of dispossession."

32.98. "Mr. Charles D. Field,1 a practising Barrister of Calcutta, commented in 1877 as under:

"I think the time in the third column ought to be, in respect of each, year's profits, the close of the year in which they were collected. It would be extremely inconvenient to count the time for each instalment of profits received on the gale days within the year."

The Judicial Commissioner, Central Provinces also wrote in the same breath:

"Profits (as for example, rents from the ryots) might be received in small sums and on various dates, and it would be a matter of no small difficulty to determine when they actually reached the wrongdoer. Mesne profits as a general rule, cannot be ascertained until after the end of the year, and time ought to run from the date when they become annually due according to the custom obtaining in the place."

1. Letter dated 19th April, 1877, National Archives File, 1877, Paper 8, p. 9.

32.99. The Nagpur Judicial Commissioner's Court1 held that the appropriation of crops commences from the date when the crops began to be cut and limitation runs from that date, notwithstanding the fact that the standing crops were sold without the knowledge of plaintiff much earlier.

This was a case under the C.P. Tenancy Act, 1920. But earlier the same court, while dealing with a case2 under Article 109 of the Limitation Act, 1908, had held that the actual receipt of profits gives the starting point for limitation. In this judgment, the earlier views of Calcutta High Court, to the effect that the cause of action does not arise till the end of an agricultural year, were not followed.

1. Nathulasa v. Shankerlal, AIR 1924 Nag 87.

2. Ganpatrao v. Jangaia, AIR 1914 Nag 65.

32.100. Points arising from earlier commen.-how far they survive.- For reasons not appearing from the Archives file, no attempt was made to pin-point the starting point of limitation with any exactitude. The problems posed in the comments were two-fold: the first was, whether the article applied at all to the cases of mesne profits and second, whether the starting point of limitation should be taken to coincide with the actual cutting of the crops.

(i) As regards the first point (applicability to mesne profits), it can be said that the definition of "mesne profits" in section 2(12) of the Code of Civil Procedure, 1908 and the elaborate manner in which section 144 of that Code deals with an application for restitution makes it clear that the article is inapplicable to cases of mesne profits to which the plaintiff is entitled, as a result of reversal of a lower court's order or decree. This has now been finally settled by the judgment of the Supreme Court.1

(ii) Coming to the second question (starting point) raised in 1877, it appears to us that in these days of advanced methods of agriculture and crop rearing, when as many as three crops can be taken from the same land within a year, it would be impracticable to stipulate a particular day of the year, (such as the end of the agricultural year under the Land Revenue Codes), as the starting point of limitation.

It could happen in some cases that the farmland in question has been leased out by the defendant to a third party and the lease deed contains detailed stipulations about the mode of payment of the lease money. In such a case, it would be open to the plaintiff to compute the running of time from such dates stipulated in the lease deed. But amending the third column of the article under discussion would be no answer for meeting such a contingency, because the phraseology even now is adequate enough to take care of such cases.

1. Mnhijibhai v. Patel Manbhai, AIR 1965 SC 1477.



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