JUDGMENT Bennet, Ag. C.J.
1. This is a reference by the Small Cause Court Judge of Saharanpur of the following point for the decision of this Court:
Whether an endorsement; of payment made at the back of a pro-note more than three years after its execution but during the close holidays of the Civil Courts which had begun prior to the completion of three years period gives a fresh start of limitation under Section 20 read with Section 4, Limitation Act?
2. The reference was laid before a Bench of two Judges and those Judges decided on 9th August 1937 that there were conflicting rulings on the point:
Accordingly we direct that this case be laid before the Hon'ble the Chief Justice with the request that he be pleased to constitute such a Bench (a larger Bench) for the decision of the question involved in the reference.
3. Under the High Court Rules Ch. 1, Rule 3-A, a Bench was constituted of three Judges by order of 6th September 1937. Before that Bench assembled, a similar point of limitation had been the subject of a decision by a Full Bench which is reported in Shanker Lal v. Rana Lal Singh (1938) 25 A.I.R. All. 217. This decision was made on 5th January 1938, and reported in February. The learned Judges who constituted the Full Bench in the present case made a brief order on 25th April 1938. They stated that there was a difference of opinion and that opposite views had been expressed by a Full Bench of Madras and by a Full Bench of the Lahore High Courts, and there had recently been a decision by a Full Bench of this Court that is in consonance with the view taken by the Lahore High Court:
It is not unlikely that there may be difference of opinion even amongst the Judges constituting this Bench Accordingly we consider that it is desirable that the present reference be decided by a Full Bench of five Judges. We therefore direct that the case be put before the Hon'ble the Chief Justice with the request that be may be pleased to constitute a Full Bench of five Judges.
4. This matter was accordingly laid before the Acting Chief Justice on 30th July 1938 and he passed an order of 1st August 1938. This order sets out that since the reference was made to three Judges there has been a Full Bench decision of this Court, and therefore it appeared necessary that the case should again go before a Bench of two Judges to decide whether it was necessary that there should be a Full Bench on the point. Accordingly this case has been listed before this Bench to-day for decision of this matter and this Bench was authorized to reply to the reference or otherwise direct. When the case opened, learned Counsel for the plaintiff took an objection to the jurisdiction of this Bench. His allegation was that the Full Bench of three Judges had been constituted by the order of 6th September 1937 and that that Full Bench of three Judges still had jurisdiction, and further that the Chief Justice had only authority to appoint a Bench of five Judges. Now this is a view which does not appear to us to be sound. We consider that by the order of 25th April 1938 the Bench of three Judges terminated their jurisdiction. Under Section 108, Government of India Act of 1919, which has been continued in force by Section 223, Government of India Act of 1935, there is power given to the High Court by its rules to provide for the exercise, by one or more Judges, or by Division Courts constituted by two or more Judges, of the High Court, of the original and appellate jurisdiction vested in the Court, and that the Chief Justice should determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several Division Courts. Now in accordance with that Section this High Court has framed rules, one of which is in Ch. 1, Rule 3-A as follows:
The Chief Justice may constitute a Full Bench of three or more Judges either to decide a case or to decide any question or questions of law formulated by a Court hearing a case; and in the latter case the issues so decided shall be returned to the Court hearing the case.
5. Now when the Full Bench of three Judges was constituted by order of 6th September 1937, jurisdiction was given to those three Judges to decide the question of law which is the subject of the present reference. The Judges did not exercise that jurisdiction and they returned the reference to the Chief Justice for further orders to be passed by him. When those learned Judges passed this order returning the reference their jurisdiction in the matter came to an end. Further, it is not for a Bench of Judges to give directions to the Chief Justice as to what he shall do or what he shall not do under Rule 3-A of the High Court Rules and the Sections quoted of the Government of India Act. It was therefore in the opinion of this Bench within the jurisdiction of the Chief Justice to take the course of action which he has taken. The facts of the case are as follows : The defendants executed a promissory note in favour of the plaintiff on 15th, June 1930. The promissory note was one payable on demand and the period of limitation in Article 73 for bringing a suit on this-promissory note is three years beginning from the date of the promissory note, that is the period of limitation would last up to 15th June 1933. Two days later, on 17th June 1933, there was a payment which has been endorsed on the back of the promissory note for which there are the thumb impressions of the defendants. That endorsement sets out as follows:
Mubligh Rs. 9-8-0 nakhud wazni 5 man pukhta, nirkh 21 seer miti Jeth Sudi duj Sambat 1988. Do ras gae ek gori wa dusri sufaid qimti Rs. 42, miti Asarh Badi dasmi Sambat 1990 ho die. Faqat.
6. Learned Counsel for the plaintiff is not able to state whether this endorsement relates to a payment of interest or principal and this matter has not been explained in the reference of the Small Cause Court Judge. For the purpose of this case we assume that there was some payment and endorsement which would have constituted a valid starting point for a fresh period of limitation under Section 20, Limitation Act, if the payment and endorsement had been made within the prescribed period. The question which we have to see is whether the prescribed period for Section 20 can be considered as extended in the present case by the fact that the period terminated and the endorsement and payment were made within the vacation of the Civil Court. For the plaintiff learned Counsel claims that the provisions of Section 4 enabled the plaintiff to make this claim. Section 4 prescribes:
Where the period of limitation prescribed for any suit, appeal or application expires on a day when the Court is closed, the suit, appeal or application may be instituted, preferred or made on the day that the Court re-opens.
7. The question is whether the words "prescribed period" in Section 20 can be enlarged by the provisions of Section 4. Learned Counsel for plaintiff points out that Section 3 says:
Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by Schedule 1 shall be dismissed, although limitation has not been set up as a defence.
8. He therefore argues that Section 4, being the subject of this reference in Section 3, will apply in the manner he desires. But Section 3 merely refers to the institution of suits or preferment of appeals or making of applications. Now, the present question is not one of those three things but it is the question of a payment under Section 20. Now Section 4 is silent in regard to any question of such a payment. Section 4 merely refers to the fact that when the Court is closed and the period of limitation expires during that period, the suit, appeal or application may be made on the day that the Court re-opens. The question in the present case has been the subject of a decision of their Lordships of the Privy Council reported in Maqbul Ahmad v. Onkar Pratap Narain Singh (1935) 22 A.I.R. P.C. 85. In that case no doubt the matter was slightly different and there was a preliminary decree in a mortgage suit and the period within which an application for a final decree could be made expired in the Civil Court vacation. Therefore under Section 4 it would have been open to the decree-holder to apply for his final decree on the day on which the Court re-opened. He did make an application but he did it in a Court which had no jurisdiction and his petition was returned to him some days later and on the same day he presented the application to the proper Court. He claimed therefore that under the provisions of Section 4 and Section 14(2) his application was within time. The question was whether the decree-holder could add periods of limitation under Section 4 and Section 14(2) to the prescribed period. On the question of Section 4 on page 248 their Lordships observed as follows:
The second period is the period of the long vacation. In regard to that matter, the appellants seem to their Lordships to be in a position which is in the nature of a dilemma. It is to be noted that there is a marked distinction in form between Section 4 and Section 14. The language employed in Section 4 indicates that it has nothing to do with computing the prescribed period. What the Section provides is that, where the period prescribed expires on a day when the Court is closed, notwithstanding that fact, the application may be made on the day that the Court re-opens : so that there is nothing in the Section which alters the length of the prescribed period; whereas in Section 14, and other Sections of a similar nature in the Act, the direction begins with the words : 'In computing the period of limitation prescribed for any application' certain periods shall be excluded. It therefore seems to their Lordships that, where there is ground for excluding certain period under Section 14, in order to ascertain what is the date of the expiration of the prescribed period, the days excluded from operating by way of limitation have to be added to what is primarily the prescribed period; that is to say, if the prescribed period is three years, and twenty days ought to be excluded in order to determine when the prescribed period expires, twenty days have to be added to the three years, and the date of the expiration of the prescribed period is thus ascertained.
9. Now this view of their Lordships has been the subject of reference by a Full Bench of the Lahore High Court reported in Shanti Parkash v. Harnam Das (1938) 25 A.I.R. Lah. 234. In that case there was a similar point in regard to an acknowledgment under Section 19, Limitation Act, made during the period that the Court was closed for vacation. On p. 236, col. 2, it is stated:
So far as the first point is concerned, it is unnecessary to enter into any lengthy analysis of the admittedly conflicting rulings on the point, for the matter appears to me to be concluded by the decision of their Lordships of the Privy Council in Maqbul Ahmad v. Onkar Pratap Narain Singh (1935) 22 A.I.R. P.C. 85. In that case their Lordships of the Privy Council pointed out that there was a distinction in form between Section 4 and Section 14. The language employed in Section 4 indicated that it had nothing to do with computing the prescribed period. According to their Lordships, all that the Section provided was that the suit might be brought on the day when the Court re-opened if the Court happened to be closed when the period prescribed expired. There was therefore according to their Lordships nothing in the Section which altered the length of the prescribed period. The matter was otherwise under Section 14 and other Sections of a similar nature where the words used were 'in computing the period of limitation prescribed for any application certain period should be excluded.' It appears to me clear that their Lordships of the Privy Council have therefore laid down that the words of Section 4, Limitation Act, do not extend limitation, and therefore the argument based on Section 4, Limitation Act, is of no force.
10. Now it appears to us that the ruling of their Lordships of the Privy Council governs the present case and that it would not be open to a Pull Bench of this Court to take a contrary view of the language of Section 4, Limitation Act. Their Lordships have so clearly laid down that Section 4 has nothing to do with computing the prescribed period that it would be impossible for a Pull Bench to hold the contrary. The argument for plaintiff involves the proposition that by virtue of Section 4 the prescribed period in Section 20 was extended. Their Lordships have held the contrary. Therefore we consider that the ruling of the Privy Council is conclusive against the plaintiff. Learned Counsel for the plaintiff argued that the ruling of their Lordships of the Privy Council was merely, as regards Section 4, an obiter dictum. We do not consider that the statement in regard to Section 4 was at all an obiter dictum, and even if it were, it is a rule that High Courts must follow the dictum laid down by the Privy Council and cannot discard a dictum on the ground that it is obiter. The three learned Judges referred to a Full Bench of the Madras High Court. Learned Counsel for plaintiff states that this ruling is reported in Suryanarayana Rao v. Venkataraju (1935) 22 A.I.R. Mad. 64. That ruling was in regard to an acknowledgment made during the period of extension prescribed by Section 31, Limitation Act, which has since been repealed. As the Section of the Limitation Act extended the period there is no doubt that the prescribed period would include the period so extended by law, but that case has no bearing on the present case because Section 4 does not extend the prescribed period. It may be noted that rulings of this class had been referred to in the Full Bench ruling of this High Court in Shanker Lal v. Rana Lal Singh (1938) 25 A.I.R. All. 217 at p. 255, and had been there distinguished.
11. For the reasons which we have given, we consider that the present reference of the Small Cause Court Judge cannot suitably be laid before a Full Bench because the matter is concluded by a decision of their Lordships of the Privy Council. Accordingly, we direct that the reference be returned to the Small Cause Court Judge with the reply that the endorsement of payment at the back of the promissory note made more than three years after its execution but during the close holidays of the Civil Courts does not give a fresh start of limitation under Section 20 and Section 4, Limitation Act, and accordingly the suit of the plaintiff would be time-barred so far as this matter is concerned.