P L D 1960 Dacca 225 (PLP)

AMIN AHMED, C. J.‑This Letters Patent Appeal is on behalf of the petitioner‑mortgagor and it arises out of an application under subsection (5) of section 26‑G of the Bengal Tenancy, Act filed by the mortgagor for restoration of possession of the properties in respect of which a deed of usufructuary mortgage was executed by him in favour of the respondent in this appeal.

2. It is not necessary to go into all the facts for the purpose of the disposal of this appeal. We may, however, state that the above application was allowed ex parte by the trial Court and possession of the properties was directed to be restored. On appeal by the mortgagee, the District Judge dismissed the appeal holding inter alia that he could not accept the plea of the mortgagee‑appellant before him that he was prevented by sufficient cause from being present at the time of the hearing of the application. He, however, held that the applica tion was not time‑barred, "as the cause of action is a continuous one" accruing de die in diem from the date of the extinguishments of the mortgage. Against this decision, the mortgagee preferred Second Miscellaneous Appeal No. 20 of 1955 and this appeal was allowed, and it was held that the application under section 26‑G (5) of the Bengal Tenancy Act was time‑barred inasmuch as Article 181 of the Limitation Act applied to the application and not Article 131.

3. The short point taken before us is whether the learned Judge was correct or not in applying Article 181 of the Limitation Act.

4. Article 181, which is the residuary Article of the Limitation Act, runs as follows "Application for which no period of limitation is Provided elsewhere in this Schedule or by section 48 of the Code of Civil Procedure, 1908. Three years When the right to apply accrues. That is to say, this Article prescribes a period of three years in case of applications for which no period of limitation is provided elsewhere in the Limitation Act. Article 131 of the Limitation Act runs as follows: To establish a periodically re‑curring right. Twelve years. When the plaintiff' is first refused the enjoyment of the right."

5. In the judgment under appeal, the point in question has been dealt with very exhaustively and a number of cases of different High Courts including a decision of this Court, Suresh Chandra Bose v. Sobhan Mridha and others ((1955) 7 D L R 426) (decision of Ispahani, J.) have been cited. From the judgment it will appear that the learned counsel who appeared in the Second Miscellaneous Appeal argued before the learned Judge that Article 148 of the Limitation Act which prescribes a period of sixty years would govern the present case. The argument of Mr. Khadim, the learned Advocate for the appellant, has also been on the same lines as it was before the learned Judge who heard the Second Miscellaneous Appeal. Mr. Khadim contends that inasmuch as the mortgage deed was executed sometime in May 1925, for a period of 15 years and that period expired in April 1940, and section 26‑G of the Bengal Tenancy Act came into force some time in 1928, Article 148 of the Limitation Act would apply to the present application. The learned Advocate has also cited the case of Mulchand Manakram and others v. Mst. Ganga and others (A I R 1951 Nag. 360). At one stage the learned Advocate even claimed that section 23 of the Limitation Act read with Article 131 of the Limitation Act would govern the present case and it should be held that there has been a recurring right inasmuch as there has been a continuing breach of contract on account of the failure of the mortgagee to fulfil the terms of the mortgage. Section 23 of the Limitation Act runs as follows: "In the case of continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues."

6. Mr. Chowdhury, who appears for the respondent, argues that this application by a mortgagor is a special and summary procedure provided by the Bengal Tenancy Act for the benefit of the mortgagor and, as the Bengal Tenancy Act does not provide for any period of limitation like other cases, the case should be governed by the general law of limitation and, in the present case, it will be governed by Article 181 of the Limitation Act. Mr. Chowdhury also points out that the view that Article 181 applies only to applications under the Civil Procedure Code is no longer tenable after the amendment of Articles 158 and 178 of the Limitation Act which relate to awards under the Arbitration Act, 1940. In this connection, he also refers to subsection (2) of section29 of the Limitation Act and, on the basis of the latter provisions, claims that the pro visions of the Limitation Act are not limited in their application to proceedings under the Civil Procedure Code, for, in that case, there would be no necessity of making an express saving in favour of special provisions in special or local Acts. Subsection (2) of section 29 of the Limitation Act runs :‑

"Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefore by the First Schedule, the provision of section 3 shall apply, as if such period were prescribed therefore in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law. (a) the provisions contained in section 4, sections 9 to 18, and section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and (b) the remaining provisions of this Act shall not apply."

7. We have considered the arguments advanced by the learned Advocates and have also gone through the cases cited by them before the learned Judge and before us and it seems to us that it is too late in the day to argue that Article 148 or Article 131 of the Limitation Act governs the present case and there is considerable force and substance in the argument of the learned Advocate for the respondent. It will appear from the provisions of Article 131 itself that it applies only in a case of establishing a periodically recurring right. There is no question of any periodically or/and recurring right here. If any authority is necessary, we may refer to the case of Abinash Chandra Dutta and others v. Gour Chandra alias Gour Pada Pal (55 C W N 489=A I R 1952 Cal. 76). We have also a case of this Court, Suresh Chandra Bose v. Sobhan Mridha and others, where Ispahani, J., sitting singly, held that an application under section 26‑G of the Bengal Tenancy Act would e be governed by Article 181 and not by Article 131 of the Limita tion Act though Mr. Khadim has tried to distinguish this latter case from the present case. In deciding the case, Ispahani, J., relied on the case of Abinash Chandra Dutta and others v. Gour Chandra alias Gour Pada Pal. We find that the learned Judge who heard the Second Miscellaneous Appeal has referred to most of the relevant cases including also the cases of Asmatali Sarip v. Majaharali Sardar and another (52 C W N 64), Saktisaran Singha and others v. Radha Raman Mandal and others (38 C W N 50) and Suresh Chandra Bose v. Sobhan Mridha and others, and has pointed out that; although the case of Baimanakbai, wife of Rostamji Byramji v. Manekji Kavasji and another (I L R 7 Bole. 213) was referred to in the case of Hansraj Gupta and others v. Official Liquidators of Dehra Dun Mussoorle Electric Tramway Company, Limited (60 I A 1 3), their Lord ships of the Privy Council did not expressly approve or disapprove the decision in the Bombay case, as, in the case before them, even if Article 181 applied, the application before them was made well within three years. We see no reason to differ from the view taken in the cases relied on by the learned Judge and also the view taken by the learned Judge in the present case that Article 181 would apply to the present application.

8. The result, therefore, is that this appeal is dismissed, as it is held that the application is barred by the law of limita tion. In the circumstances of the case, we do not award any costs. CHAKRABORTI, J.‑I agree with my lord the Chief Justice. K. B. A. Appeal dismissed.