Authored By : William Comer Petheram, Beverley

William Comer Petheram, Kt., C.J. and Beverley, J.

1. This second appeal arises out of an application toexecute a decree made by the Munsif of Sealdah on the 7th September 1877. Aftervarious attempts to execute the decree, the judgment-creditor on the 2ndSeptember 1889 applied for the transfer of the decree to the Bagirhaut Courtunder Section 223 of the Code. An order for transfer was made, and on the 9thSeptember the Court having been closed from the 3rd to the 8th (inclusive) onaccount of the Mohurrum holidays, the decree-holder applied to the Munsif ofBagirhaut for execution of the decree under Section 230. Upon that applicationbeing made, the judgment-debtor objected, inter alia, that the applicationought not to be granted, as it had been made more than 12 years from the dateof the decree sought to be enforced (Section 230, Code of Civil Procedure).

2. Both the Lower Courts have held that the Court havingbeen closed from the 3rd to the 8th September, and the application having beenmade on the 9th, the day on which the Court re-opened, Section 5 of theLimitation Act operates to prevent the application from being barred.

3. It is contended before us that the period of limitation(12 years) being prescribed by the Code of Civil Procedure and not by theLimitation Act, Section 5 of the latter Act is not applicable so as to modifythe strict provisions of Section 230 of the Code. The judgment-debtor reliesupon Section 6 of the Limitation Act, and upon a series of decisions cited inthe recent Full Bench case of Nagendro Nath Mullick v. Mathura Mohun ParhiI.L.R. Cal. 368 in which it was held that the provisions of the Limitation Actwere not applicable to suits under Act X of 1859.

4. We are of opinion, however, that Section 6 of theLimitation Act has no application to the present case. The Code of CivilProcedure is neither a special nor a local law. It may be that the word"prescribed" in Section 5 is intended to be read as "prescribedby this Act;" but whether that be so or not, it seems to us that thedecree-holder is entitled to the benefit of the rule laid down in that sectionupon the broad principle referred to in the case of Shooshee Bhusan Rudro v.Gobind Chunder Roy I.L.R. Cal. 231, that where the parties are prevented fromdoing a thing in Court on a particular day, not by any act of their own, but bythe act of the Court itself, they are entitled to do it at the first subsequentopportunity. This principle has been followed in several cases viz. Behari LollMookerjee v. Mungolanath Mookerjee I.L.R. Cal. 110 Golap Chand Nowluckha v.Khristo Chunder Dass Biswas I.L.R. Cal 314 Hossein Ally v. Donzelle I.L.R. Cal.906 and Khoshelal Mahton v. Gunesh Dutt I.L.R. Cal. 690 and it has beenrecognized (as regards future enactments) by Section 7 of the General ClausesAct, I of 1887.

5. We hold, then, that the Court having been closed on the daywhen this application might have been lawfully granted within the 12 years, andthe application having been made on the day the Court re-opened, it must betaken to have been made within time. We accordingly dismiss the appeal withcosts.

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Peary Mohun Aich vs.Anunda Charan Biswas (03.07.1891 -CALHC)