RAM PRASAD DAGDURAM versus VIJAY KUMAR MOTILAL MIRAKHANWALA & ORS.

Citation: [1966] SUPP. 1 S.C.R. 188 · Decided: 18-04-1966 · Supreme Court of India · Bench: A.K. SARKAR · Disposal: Appeal(s) allowed

Judgment (excerpt)

188 
RAM PRASAD DAGDURAM 
v. 
VUAY KUMAR MOTILAL MIRAKHANWALA & OfIS. 
April 18, 1966 
A. K. SARKAR C. J., J. R. MuuHOLKAR AND R. S. BACHAWAT, JJ.J 
Code of Civil Procedure (Act 5 of 1908), 0. 1, r. 10(1) and (2}-
Scope of. 
Indian Limitation Act (9 of 1908), s. 22 and Art. 132-Addition 
of partie~uit when deemed to be filed-Suit for foreclosure-Pe-
riod of limitation-Indian Act extended to Part B State-Period o! 
limitation abridged by Indian Act-Law of limitation applicable. 
The appellant executed a mortga,qe in 1934 in favour of the pro-
prietrix of a firm in the State of Hyderabad. The mortgage amount 
became due in 1943. The first respondent, who was the daughter's 
son of the mortgagee, claiming to be her adopted son. filed a suit for 
foreclosure of the mortgage, m 1954, after the death of the mort-
gagee. The trial Court dismissed the suit on the ground that the adop-
tion was not established. The first respondent appealed to the High 
Court and, pending the appeal, applied for adding 
his 
natural 
mother as a co-plaintiff and her two sisters as defendants as they 
were not willing to join as plaintiffs, and sought 
consequential 
amendments in the plaint. The High Court granted the application 
under 0. !, r. 10(1), Civil Procedure Code, on 4th November, 1958 and 
thereafter, disp05ed of the appeal by passing a preliminary decree 
for foreclosure in favour of the added parties. The High Court did 
not go into the question of adoption but dismissed the first respon-
dent's suit. 
HELD: (Per Sarkar, C.J.) : The order adding parties cannot be 
supported under either sub-r.(l) of sub-r. (2) of 0. 1, r. 10. Sub-r. (1) 
provided for addition of plaintiffs and could not therefore justify the 
addition of defendants. In the case of addition of parties under sub-r. 
(2), the provisions of s. 22 of the Limitation Act admittedly apply 
and under it in the present case, a suit by the added porties, on the 
date they were added, would have been barred. It would have been 
futile, therefore, to make an order under sub-r. (2). (190 G-H: 
191 
D-EJ 
Ravji v. Mahadev's case (l.L.R. 22 Born. 672) doubted. There is no 
reason to think that s. 22 of the Limitation Act does not apply to 
0. 1, r. 10, sub-r. (1 ). (191 G] 
A person suing as the proprietor of a firm does not sue in a re-
presentative capacity. He sues in his personal capacity. [192 E-F] 
A 
R 
r, 
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Per Mudholkar and Bachawat JJ: The High Court had power to 
G 
• 
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Join the co-plaintiff under 0. 1, r. 10(1) and to join her sisters as defen-
~ 
dants under 0. 1, r. (2). and to allow onsequential amendments of 
the plaint under 0. VI, r. 17, but, as regards the added partles, by 
reason of s. 22(1) of the Indian Limitation Act, 1908. the suit must be 
regarded as instituted on the date on which they were added and was 
therefore barred by limitation. [197 CJ 
In 1951, the Hyderabad Limitation Act was repealed and the H 
Indian Limitation Act was extended to the State. The Indian Act ab· 
tidged the period of limitation for the enforcement of the mortgage, 
..
"!
,,
• 
' I'" 
ItA~l PRASAD t', VIJAY KU~IAR (8arkar, 0. J.) 
- - .-. ....,;,-~-r·----· 
A ·'but did not impair or take away any vested right. Therefore, on the 
date of the institution of the suit, the Jaw of limitation applkable 
B 
w~s the Indian Act. [194 E-F] 
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The respondent, as the·original plaintiff, sued in his own right. 
and on his own behalf. There;fore, the parties added must be regar-
ded as a new plaintiff and new defendant respectively. Section 22 of 
the Limitation Act in express terms applies \vhenever a new plain-
tiff or a new defendant is substituted under 0. 1, r .. 10(1) or (2). The 
effect of the section is that the suit must be deemed to have been 
instituted by the new plaintiff when he was made a party. [196 E-G] 
Ravji v. Mahadev~-(1897) I.L.R. 22 Bom. 672, disapproved. 
Since the suit in the instant ~ase was for foreclosure only it was 
governed by Art. 132 of the Limitation Act and must be regarded as . 
C · instituted in November 1958, beyond 12 years from the date when 
the mortgage money was due. [195 CJ 
Vasudeva Mudaliar v. K. S. Shriniwas Pillai IL.R. 34 I.A. 186, applied-
OVJL APPELLATE JURISDICTION: Civil Appeal No. 1046 of 
1963. ' 
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., 
D 
Appeal from the judgment and decree dated November 17, 
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F 
G 
H 
1959 of the Bombay High Court in First Appeal No. 484 of 1957 
from Original Decree. 
S. T. Desai, and J. B. Dadachanji, for the appellant. 
Sarjoo Prasad, B

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