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Present : Fisher C.J.
MANGO NONA v. MENIS APPU.
104—C. R. Gampaha. 1,036.
Prescription—Court ofRequests—‘Plaint . handed to Recordkeeper—
Interpretation Ordinance, No. 21 of 1901, s. 9 (1).
Where, in a Coart of Requests, the plaint in an action on apromissory note dated February !, 1923, was handed to the reoord-keeper on February 1, 1929, and accepted by Court on the followingday.
Held, that the action must be deemed to have been instituted onFebruary 1, 1929, and that it was not prescribed.
HIS was an action on a promissory note dated February 1, 1928.
The plaintiff handed the plaint, to the recordkeeper on
February. 1, 1929, and the Court accepted it on the following day.
Two questions arose for decision. What was the date of theinstitution of the action? and whether the action was prescribed?
The learned Commissioner of Requests held that the action mustbe deemed to have been instituted on February 1, 1929, and thatthe action was not prescribed.
Weerasooria, for defendant, appellant.—Promissory note is dated• February 1, 1923. Action is prescribed if instituted after six years.Here the action must be deemed to have been instituted on February2, 1929, on which date only, the Court accepted the plaint. Theaction cannot be deemed to have been instituted on February 1,1929, on which date the plaint appears to have been handed overto the recordkeeper of the Court of Requests. The recordkeeperis not an officer of Court for such a purpose. The action is prescribedon February 2, 1929.
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Even if action is held to have been instituted on February 1,1929, still the actiou is prescribed. To avoid the effect of section7 of Ordinance No. 22 of 1871, the action should have beeninstituted on or before January 31, 1929.
Council cited Murukkupillai v. MuttulinkamHatwattc v. Appu-hamir and English v. Cliff.3
Bajapakse. for plaintiff, respondent.—Section 7 of the Pre-scription Ordinance, No. 22 of 1871, says, “ no action
maintainable …. unless such action shall be brought withinsix years from the date of the promise . • ■ . ' ” The action isbrought or instituted once the plaint is presented to the Court orto the officer appointed by the Court. See section 39 of the CivilProcedure Code. The institution of an action must be differentiatedfrom the entertainment or rejection of the plaint. The record-keeper is the officer appointed and the action must be deemed tohave been instituted on February 1, 1929. the day on which theplaint was handed to him.
The 1st February, 1929, is within the six years* period, unlessdefendant proved that the note was given at a particular hour onFebruary 1. 1923, and that particular hour on February 1, 1929,was past, when the plaint was handed over.
The position of the plaintiff is rendered stronger by section 9 (1)of the Interpretation Ordinance. No. 21 of 1901, which enactsthat in all Ordinances (both before and after 1901) where the word<r from ** is used in reckoning the days, the first day of the series isto be omitted. Murukkupillai v. Muttulinkam (supra) was decidedbefore Ordinance No. 21 of 1901, ard the passage cited is obiter.
July 19, 1929. Fisher C.J.—
The only point for decision in this case is whether the plaintiff'saction is prescribed- The action is based on a promissory notedated February 1, 1923, and the plaintiff handed his plaint to therecordkeeper of the Court of Requests on February 1, 1929. Thetwo questions to be answered are, firstly, did the handing of theplaint to the recordkeeper constitute bringing the action ? If so,was the action brought within six years from February 1, 1923 ?
As regards the first question, in my opinion, the action was broughton the day that the plaint was handed to the recordkeeper. Section39 of the Civil Procedure Code provides that an action “ shall beinstituted by presenting a duly stamped written plaint to the Courtor to such officer as the Court shall appoint in this behalf. *' Thelearned Commissioner, in his order, says that "-The recordkeeperis the proper officer to receive plaints and to Submit them to Court, **and there is no reason for saying that that pronouncement is
> 3 S. C. X. 336.4 3 X. L. B. 270.
(1914) 2 Oh. Div. atp. 376.
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1920. incorrect. On. February 1, therefore, the plaintiff did all in hiaFishbr c.J. power in the direction of bringing an action, and subsequent deai-
t ings with the plaint, which was, in fact, duly accepted next day,
Jlfa^o Aowa cannot in my opinion affect the question of the time when theMcnia Appu action was brought.
On the second question the view taken by the learned Com-missioner as to the combined effect of section 7 of Ordinance No. 22of 1871 and sub-section (1) of section 9 of Ordinance No. 21 of 1901is, in my opinion, the correct view.
The appeal is therefore dismissed with costs.