Pre-emption
Suit
Doctrine of lis pendens applies also to preemption
suits. 88 J.C. 202 —1925A. 502; 49A. 516—1927A. 336; 9 Luck 475—1934 0. 303; 24
IC. 32—17 OC 150; 89 IC 219—23 ALl 615. But it does not affect the validity of
the sale affected by the vendee during the pendency of the pre-emption suit to
a person possessing a right of pre-emption equal to that of the pre-emptor. II
L. 258—I 930 L. 356 (F.B.) See also 32 P.L.R. 283—1931 L. 435. Persons
claiming superior right to pre-empt, whether can claim notwithstanding us
pendens. 27 A.LJ. 537—1929 A. 440. Doctrine of lis pendens does not apply where pre-emptor had obtained decree
before declaratory suit. 1929 L 589. See also 96 IC 450.
Suit for
Dower
Section
applies to a suit for dower by a Mohamedan wife in which a claim is made for
charge of possession of the property. Sec 4 C. 402; 19 A. 504. But see 130 IC.
113—193 1 0.63 where it was a mere money claim and the property left after
transfer was ample. A transfer by a Mohammedan husband to his wife in discharge
of his legal obligation to pay dower does not amount to a sale under s.52. I
Luck. 83—29 OC 108—1926 0. 186.
Administration
Suit
The doctrine
of us picnics does not apply to administration suits. 1927 R 186; 5 R
266—103 I.C. 264; 2 R 4—79 IC 729; 1921 R 69; 27LW544— Where the creditor
of the deceased was unaware of the will left by him and a constituted claim by
a residuary legatee under the will for a declaration of his rights, brought a
suit against the widow of the deceased in possession of some of his properties
and got a decree. Held, the decree was binding on the residuary legatee and was
not affected by s. 52.54 M 212—1930 M 930—60 MU 97. Where a person purchased
property from one of the heirs pending an administration suit, held, that the doctrine
of us pen- dens applied. 7 R 734—1930 R 132.
Suit for Injunction
The doctrine
of us pendens applies to suits for injunction. The pendency of the suit under
s.52 as it stands after the amendment of 1929, extends up to the complete
satisfaction of the decree passed in the suit; and under the present law the
injunction will go with the land and the decree can be executed against the
legal representative and also against the transferee of the judgment-debtor. 1935
AMU 67.
Pauper Suit
A transfer
made after the application for leave to sue informa pauperis is filed but
before it is registered as a suit is affected by the rule of us pendens. when
the immovable property transferred is specifically in issue in the suit. The
fact that the immovable property is not in issue at the stage of the enquiry
into the pauperism does not make any difference so far as the applicability of
the rule of us pendens is concerned. 1936 M. 853—71 M.L.J. 301—44 LW 427.
Mortgage
Suits
A suit
brought by a mortgagee cannot be affected by the pendens because another
mortgagee has already sued to enforce his own rights. Both have rights against
the same owner and the title of each relates back to the date of his mortgage
and is not created by the decree. 30 N.L.R. 284—1934 N. 36.
Suit for
Specific Performance
The doctrine
of us pendens applies to suits for the specific performance of agreements to
sell immovable properties. Court sales and private sales equally come under the
doctrine of us pendens. 34 CU 79—49 C 495; 31 (Born) LR 343—1929 (Born) 200;
26 (Born) LR 418. As to the effect of in- ordinate delay in execution of a
decree for specific performance, see. 1931 N. 138 under the old section.
Suit for
Contribution
Where a
person purchases another’s property by private sale during the pendency of a
contribution suit against such person in which a simple money decree without
reference to any charge was passed, the purchase is not affected by the
doctrine of us pendens and is not subject to the decree passed in suit. 165
IC 567—1936 P 571.
Suits for
Maintenance
by Hindu
widow asking for a charge on her husband’s property; MU 520; 99 IC 564.
The doe- trifle of us pendens applies to maintenance actions, and under the
explanation to s.52, as amended in 1929, the lis continues after the decree and
tip to die sale in execution of the properties charged by the decree. A
mortgage executed by the judgment-debtor after the decree and before the sale
is therefore affected by us pendens. The fact that in a suit for maintenance by
a Hindu widow a charge is claimed over all the family properties which are
specified in the plaint would not make any difference in the application of the
doctrine, if the properties are sufficiently designated so as to make them
directly and substantially the subject-matter of the litigation. 1935 M.
867—69 M.LJ. 447. The doctrine of us pendens embodied in s.52, applies to a
sale made during the pendency of a suit for maintenance by a Hindu widow in
which property sold is sought to be made a charge for the widow’s maintenance. 42
(Born) JR 883.
Interpleader
Suit
Where a
person purchases property from one of the parties after a decree creating a
charge is passed in an inter-pleader suit the transfer is pendente use. 33
L.W. 391—1930 M. 98&—60 M.LJ. 79.
Revival of
Suit
Where a suit
dismissed for default is revived within a reasonable time, there would be no
suspension of us pendens. It will be considered to be a continuous proceeding.
See 50 I.C. 727.
Eviction of
a tenant from the suit premises when sought on the ground of
rebuilding—Landlord to prove his such requirement as being bonafide which must
contain an clement of need.
Abdur Rashid Bhuiyan Vs.
Mosammat Rahima Khatun, (1983) 35 DLR (AD) 388.
—Suit filed
for cancellation of a deed on the ground of fraud—Ad-interim injunction prayed
under Or.39, r.1 against disturbance of plaintiff’s possession—Injunction can
validly be granted.
Kazi
Shamauddi Vs. Mst. Nuren Nahar (1969)21 DLR 41.
—Parties in
a contract embodied a clause of limitation to sue each other within three
months from the date of breach of such contract—Such term in contract is void
and statutory period of limitation in circumstances, which is three years, will
apply.
Islamic Republic
of Pakistan Vs. Nazar Din Khauack (1969) 21 DLR (WP) 367.
—Limitation for
filing a pre-emption case—by the mother guardian on behalf of her minor daughter
having knowledge about transfer—case filed 7 years after accrual of right to
institute the case—Pica of minority does not prevail.
When a minor
sues through her natural and legal guardian being a mother as a next friend the
knowledge of the mother as guardian shall be deemed to be the knowledge of the
minor.
Tarajannessa
Vs. Wazed Ali Sikder (1982) 34 DLR 219.
—Suit for
malikana comes under the Art. 50 Cu 52 : 1929 PC 166: 33 CWN 809: 31 (Born)
LR 891 PC.
—Suit
against a deft : for the value of goods mis- appropriated by his brother who
was agent of the plaintiff on the ground that the defendant being joint with
his brother had enjoyed the benefit thereof, is governed by this Art. 120 L
Act. 10 C. 860 PC.
—A suit to
set aside a consent decree where fraud is not alleged or proved is governed by
this Art. 39 CWN 938:164 IC 561. 120 L Act.
—A suit by
minor to declare a decree void against him which was passed owing to the gross
negligence of his guardian is governed by this Art. 120 L Act and Limitation
commences from the (late when the gross negligence becomes known to the minor.
1936 (Mad) 804.
—Suit for
enforcing a charge against movable property pledged, is governed by this Art.
22C, 21, 17 A. 284, 27 M. 528 F.B. 120 L.ACL.
—A suit for
money lent on a usufructuary mortgage the cause of action being the failure of
the mortgagor to secure the mortgagee in possession, falls either under Art.
116 or this Article 21 M. 242. 120 L.Act.
—Suit by a
reversioner that the alienation is not binding on him is governed by this Art. 1941
Cal 41 : 45 C.W.N. 141. 120 L.Acs.
—Suit
against a son governed by Mitakshara law to enforce father’s debt on the ground
of pious obligation is governed by this Art. 120 L.Act 23 A. 206, 42 C.1068,
F.B., 28A. 508, 27 M. 243 F.B. 16 M. 99.
—A suit for
declaration of title against an order under s.146 Cr.P.C. is governed by this
Art. 120 L.Act. 26 M.410, bus the cause of action is recurring one. 22 C.LJ.
283.
—The
plaintiff sued the defendant-company for non-delivery of goods in the following
circumstances. The plaintiff having found that there was a shortage of goods
started correspondence with the defendant company who sent a reply on 19.2.5 1
intimating the matter would be enquired into and further information would be
communicated. Having in vain waited for about 16 months the plaintiff brought
the suit for compensation on 12.6.52 against the defendant-company. It was
contended on behalf of the defendants that the Suit was barred by limitation as
the plaintiff was bound to bring his Suit within one year of the date on which
he took delivery of the goods on 15.1.51.
Held: The suit
is not barred either under Article 30 or Article 31 of the Limitation Act. The
defendants having failed to communicate the results of the enquiry, as assured
by their letter, the suit was perfectly maintainable as having been brought
within a reasonable time from the date of defendant’s letter dated 19.2.51. The
expression “when the goods ought to be delivered” in Article 31 of the
Limitation Act means when the plaintiff could have filed a suit without the
risk of the suit being considered as premature. Dada Ltd. Vs. R.S.N.
Company. (1958) 1O DLR 242.
Plaintiff
may sue for loss of goods either under Art. 30 or 31. of L Act
Plaintiff
may sue for loss as contemplated under Article 30 or he may sue in alternative
within the meaning of Article 31 of the Limitation Act as well, Dada Ltd.
Vs. R.S.N. Company. (1958) 10 DLR 242.
Suits on Mortgage. In a suit
on a mortgage, where a subsequent purchaser from the mortgagors impleadcd after
Limitation, the whole suit is not liable to dismissal merely because the
mortgage was joint and indivisible. In such cases the mortgage-debt should be
apportioned between the defendants who arc barred and those who are not barred.
1903,30 Cal. 755; 1906,33 Cal. 1079 atp. 1093; 1928, 33 C.W.N.248.
Suit for
Partnership Accounts. In a suit by a partner for partnership accounts all the partners
are necessary parties, and, therefore, if any of them is implcadcd after time
the whole suit fails. 1887, 14 Cal. 791; 1913, 18 C.W.N. 464.
Suit for
possession. In a suit to recover joint property of two or more persons, if
all the necessary parties are not impleaded within time, the whole suit fails. 1916,
36 md. Cas 77(Pa(.),foll. in 1916,36 md. Cas. 542 t’Pat).
Suit against
Dead Man:
Joinder of Representatives after time. If a suit is brought against a person
who is then dead, and hi legal representatives are subsequently joined a
lndanls, the case is not excluded from the operative of section 22 L Act; and
accordingly, if limitation has run out at the time of such joinder, the suit
would be barred.1885,12 (Cal) 330; 1907,6 CLj 383.
Suit by or
against Legal Representative of Deceased: Proper Representative Joined
After Time. Where the debtor has 1ied before suit and plaintiff sues A as the
deceased legal representative and subsequently (A fbi being in fact such
representative) the plaintiff brings the true representative on the record as
defendant, the case is covered by section 22 L Act and is not excluded from its
operation by clause 2 of that section. See 1873 10 (Bom) HC 224; 1897, 21
(Born) 580.
Suit by or
against Agent : Principal Joined after Time. When a suit is wrongly brought in
the name of an agent, and after time has run out the principal is substituted
as plaintiff, the suit is not barred. 1887, 14 Cal 400, (foil. in 1915, 20
C.W.N. 49.
Suit by or
against a Firm or Partners. Where a suit is brought by or against a Firm in the name of the
Firm, the joinder of the partners (of the Firm) after limitation does not bar
the suit, the case being one of mere misdescription. 1885, 7 (All) 284 at p.
287; 1892, 17 (Born) 413.
Suit by or against Minor. Wrong Description of Party. In case of a
suit by or against a minor, the minor himself must be named as a plaintiff or
defendant. If by an error the guardian (and not the minor) is named as the
party suing or being sued, the mistake cannot be corrected after limitation for
the suit has expired. 37 PR 1889; 1875, 12 (Born) IIC 17.
Suit by or
against Idol or Temple. A suit by or against an idol must, it seems, be brought in the
name of the idol as represented by. the manager. If, however, the suit is
brought in the name of the manager, the mistake may by corrected, and it would
not amount to adding a new party within section 22 L Act. 1911, 33 (All) 735
(FB).
Suit by
Executor:
Beneficiary added after Time. In a suit brought by an executor for possession,
if the beneficiaries are, by leave of the Court, substituted as plaintiffs,
that is not, having regard to Order 31, rule 1, Civil Procedure Code,
tantamount to substitution of new plaintiffs within section 22, Limitation Act.
1903, 7 CWN 817.
Suit by
Insolvent:
Official Assignee added after Time. A suit brought by an insolvent in his own
name, after his adjudication, is not maintainable, and the substitution of the
name of the Official Assignee at a later date amounts to the addition of a new
plaintiff, within the meaning of section 22, Limitation Act. 1926, 28 Born.
L.R. 554.
Suit by
Unregistered or Unincorporated Society : Members Impleaded after Time. A Suit
by an unregistered or unincorporated society must be brought in the names of
all the members of the society. 1897, 20 All. 167.
Suit against
Government: Secretary of Slate added after Lime, in a Suit against the
Government, where the original defendant is an officer of the Government and
the Secretary of the State for India is impleaded as a co-defendant after
limitation, the suit against the latter is barred, 1901, 6 CWN 218.
Suit against
Municipal Committee—Where, in a Suit brought against a Municipal Corn- mitten, a wrong
official is name as the defendant, and after time has run out, the error is
corrected and the name of the proper official substituted, the suit is not
barred by section 22 L. Act. 1879 2 All. 296 (distin, in 1901, 6 C.W.N. 218
and foil. in 1915, 20 C.W.N. 49, and relied on in 1925, 27 Born LR. (1122); in
1892, 16 Mad. 305 the question was left open.
Suit against
Agent of Railway company : Misdescription of Defendant’s name. W1erc a suit was instituted
against “The Agent East Indian Railway Company,” Held: that the plaintiff was
not entitled, after the period of limitation for the suit had expired, to amend
the plaint by substitution of the “East Indian Railway Company,” for the
defendant originally sued. “It is not a case of misdescription but if the
amendment is allowed it will have the effect of adding a new party to the suit,
and section 22 of the Limitation Act will apply.” 4 1923, 3 Pat. 230.
Suit against
Debuttor Estate; Adding Shebait after time. When plaintiff asked for a decree
against the debuttor estate and joined as defendant one A both as a receiver of
the estate and in his personal capacity, but no one was joined to represent the
estate as shebait and subsequently plaintiff amended the plaint and impleaded
the said A (who was already on the record as defendant) also as a shebait and
as representing the estate. Held—the effect of the amendment was merely to make
the estate property represented and that no new defendant was introduced. 1905,32
Cal. 582, (on appeal, 1909,37 Cal. 229, PC.
Suit against
Surety:
Principal added after time. When in a Suit against the surety, the principal
debtor is added after time, the suit is barred as regards the latter alone, and
it may be decreed against the surety. See 1885, 12 Cal. 330.
—A suit for
partition of joint family property which was excluded from previous partition
by fraud of some members is governed by this Article 144 Act. 1934 (Born)
419 : 214 JC 273.
—A suit by
Hindu widow to recover possession of her deceased husband’s estate is governed
by Art. 144 60 MU. 619 : JR. 1931 P.C. 150: 1931 P.C. 84: 33 Bans. L.R. 904:
193! M.W.N.561: 53 C.LJ. 292:8 O.W.N.700:35 C.W.N. 465 :33 LW. 477: 12 Pat.
L.T. 563 .‘ 131 J.C. 758 P.C.
Art.146A—Suit by
local authority for the possession of any road or street—30 years, from the
date of dispossession.
To apply
this Art. the local authority need not be the owner of the street or road, 25
M.635.
Suit for
possession by Union Board against a trespasser from before the establishment of
the Board is governed by Art. 144. 1942 Cal. 151 : 45 C,W.N. 802:200 1.C.
386.
Art.147—Suit by a
mortgagee for foreclosure or sale—60 years, from when the money becomes due. This
Article applies to one class of mortgage in which alone a suit can be and
always is brought for “foreclosure or sale” viz, to English mortgage. 11
C.W.N. 1005:30 M. 426:4 ALJ.625:9 Born. L.R. 1104:6 Cu 255, PC, 95 I.C.
100:1926 (All) 551. 48A, 302 :24 AU 295 :94 IC 849:1 926 (All) 493.
—Suit on
adjusted account comes under this Art. 64 L Act. 21 CWN 591, 63 IC 280.
—Suit on a
bond fixing date for payment and giving an option to the creditor to sue on
default of punctual payment of interest falls under this Art. 66 L Act. 1941
Oudh 210 : 193 IC 481 FB.
A suit on a
personal covenant under a registered bond is governed by Art. 116 and not by
Art. 66 and the period of limitation are 6 years. 52 M. 105 1929 Mad 53 FB,
1935 (Born) 203 : 156 I.C. 286.
Art. 90—In a suit
brought by the insurance company against its agents for neglect or misconduct
the period of limitation is three years from the date when the neglect or
misconduct becomes known to the insurance company. Nacem Finance Limited Vs.
Bashir Ahmed Rafique (1971) 23 DLR (SC) 81.
—Suit
dismissed as plaintiff failed to establish possession within 12 years of the
institution of the Suit. The plaintiff having failed to establish his
possession in the suit land within 12 years from the institution of the Suit he
is not entitled to get any relief, the suit being barred by limitation. This
conclusion is in accordance with law.
Rajan Miak
Vs. Abdur Rashid (1982) 34 DLR (AD) 275.
Declaratory
suit—Bar
provided under Article 47, Limitation Act—Civil Court while deciding question
of limitation can look into and ‘decide if orders passed in a proceeding under
section 145 Cr.P.C. was without jurisdiction or not.
Serajul
Hoque Mukhtar Vs. ARM Mustanesar Billah (1972) 24 DLR 75.
—A suit by a
person who was not a party to the proceedings under sec. 145 does not come
under this Art. 47 L Act. 1941 (Pesh) 65: 196 IC 444.
—A Suit by
an assignee of the person bound by the order falls under this Art. but not by
an assignee prior to the order. 1936 (Pat) 47 L Act 629:166 IC 29.
—A suit for
joint possession by a co-owner against the other co-owner whose exclusive
possession is maintained under sec. 145 Cr.P.C. comes within this Art. 47 I
Act. 1943 (Cal) 67: 46 CWN 817.