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Civil Revision No. 108 of 1953, decided on 1st June 1953.

Arts. 5 and 73‑----Difference.

No doubt the language used in Articles 5 and 73 with regard to the starting point of the limitation for suits mentioned in the Articles is not the same but the reason for this difference is plain. Article 5 applies to suits based on all sorts of pronotes and bills of exchange while Article 73 deals only with pronotes and bills of exchange payable on demand, and it is clear that the same language could not have been employed in both these Articles to indicate the starting point of limitation for the suit.

There is no convincing reason why the starting point of limitation for a suit based on a pronote payable on demand should be different from that mentioned in Article 73 if the suit is in a summary form under Article 5 of the Limita tion Act. Reference to Article 59 of the Limitation Act may also be made under which the starting point of limitation for a suit for money lent under an agreement that it shall be payable on demand is the date when the loan is made. For the purposes of the Limitation Act and Article 5 thereof money due on a pronote payable on demand becomes payable from the date of the execution of the pronote.

O. XXXVII, r. 2---- Suit on pronote‑Provisions of order do not apply if suit is instituted after one year from date of execution of pronote.

The date of the pronote in the present case was the 30^th of August 1951, and, therefore, the suit instituted on the 6th of February 1953 was clearly beyond the period of one year mentioned in Article 5 of the Limitation Act and for that reason not triable in the summary manner sought to be employed in its trial.

Akbar Ali for Petitioner.

Muhammad Fazil for Respondent.

--Sheikh Abdus Samad borrowed Rs. 19,500 from Khan Bahadur Muzaffar Hussain on the 30th of August 1951 by means of a pronote payable on demand. Some payments appear to have been made by the debtor and on the 6th of February 1953 Khan Bahadur Muzaffar Hussain brought a suit for recovery of Rs. 14,500, claiming the sum as due to him as balance of the amount mentioned in the pronote. On the same day, an applica tion was put in by the plaintiff that the summary procedure pre scribed by Order 37 of the Code of Civil Procedure be applied to the case. This application was accepted and a summons issued to the defendant on the 23rd of March 1953, intimating that the suit was set down for hearing on the 11th of April 1953 and that leave to appear may be obtained by the defendant on an applica tion to the Court supported by an affidavit or declaration showing that there is a defence to the suit on the merits, or that it is reasonable that the defendant should be allowed to appear in the suit. When this summons was served on the defendant, he came up to this Court with an application under section 151 of the Code of Civil Procedure to have the summons issued by the trial Court replaced by an ordinary summons issuable in any other suit.

The learned counsel for the respondent raised a preliminary objection that the petition did not lie, as, according to him, it was only with regard to proceedings in the Court itself that action could be taken by this Court under section 151 of the Code of Civil Procedure. I do not consider it necessary to decide the correctness or otherwise of this contention, because it appears to me that, if the procedure adopted by the learned Judge was not allowed by law, the order issuing summons in a summary form would be clearly open to revision under section 115 of the Code of Civil Procedure.

The learned counsel for the petitioner urged that summary form of procedure envisaged by Order 37 of the Code of Civil Procedure could not be claimed and should not have been allowed in the suit as the suit was brought beyond the period of limitation prescribed for a suit of that nature. It was contended that such suits were governed by Article 5 of the Limitation Act and the period prescribed was one year from the date when the debt or liquidated demand bosom as payable or when the property becomes recoverable. To this the learned counsel for the respondent replied that a pronote payable on demand could not be considered to have become payable on the date when it was executed, and in this connection drew my attention to Article 73 of the Limitation Act under which the period prescribed for a suit on a bill of exchange or promissory note payable on demand and not accompanied by any writing restraining or postponing the right to sue was three years from the date of the bill or note. The learned counsel for the respondent argued that, as the language used in Article 73 was different from that used in Article 5, the period of limitation under Article 5 with regard to a pronote payable on demand would not start running from the date of the execution of the pronote, though it would do so if the case were governed by Article 73. No doubt the language used in Articles 5 and 73 with regard to the starting point of the limitation for suits mentioned in the Articles is not the same but the reason for this difference is plain. Article 5 applies to suits based on all sorts of pronotes and bills of exchange while Article 73 deals only with pronotes and bills of exchange payable on demand, and it is clear that the same language could not have been employed in both these Articles to indicate the starting point of limitation for the suit.

The question to consider, therefore, is when the debt became payable in the present case. As mentioned already, the pronote, which forms the basis of the suit, was payable on demand, Article 73 of the Limitation Act deals with, inter alia, a pronote payable on demand and the date from which the period of limita tion of three years fixed by that Article start is the date of the pronote. I can think of no convincing reason, nor has the learned counsel for the respondent suggested any, why the starting point of limitation for a suit based on a pronote payable on demand should be different from that mentioned in Article 73 if the suit is in a summary form under Article 5 of the Limitation Act. 1 might also make a reference to Article 59 of the Limitation Act under which the starting point of limitation for a suit for money lent under an agreement that it shall be payable on demand is the date when the loan is made. I would, therefore, hold that for the D purposes of the Limitation Act and Article 5, thereof, money duel on a pro note payable on demand becomes payable from the date of the execution of the pronote. The date of the pronote in the present case was the 30th of August 1951 and, therefore, the suit instituted on the 6th of February 1953 was clearly beyond the period of one year mentioned in Article 5 of the Limitation Act and for that reason not triable in the summary manner sought to be employed in its trial.

For the reasons given above, treating the petition as one for revision, I accept it and set aside the order of the summary trial of the suit. The suit will be tried in the ordinary manner and the defendant will be entitled for defend it without any condi tion. The parties shall appear in the trial Court on the 17th of June 1953. The petitioner shall have his costs of the petition from the respondent.

K. M. A. Petition accepted.

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