# PIRGONDA HONGONDA PATIL v. KALGONDA SHIDGONDA PATIL AND OTHERS

- **Citation:** [1957] 1 S.C.R. 595
- **Court:** Supreme Court of India
- **Decided:** 1957
- **Bench:** Venkatarama Aiyar, S.K. Das, Gajendragadkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pirgonda-hongonda-patil-v-kalgonda-shidgonda-patil-and-others-1357
- **Pages:** 10

## Headnote

Amendment of Plaint-Additio11 of furthe1· and better particulars of the claim-Nature of reliefs not altered-Fresh suit on
the date of amendme11t barred by limitation-Whether amendment
should be allowed-Code of Civil Procedure (Act V of 1908), 0. VI,
r. 17. 0. XX/, rr. 97, 99, 103.
S. obtained
a decree of
ejectment against the
third respondent and while attempting to take possession of the properties in
execution of the decree he
was obstructed by the
appellant and
the application for removal
of the
obstruction was dismissed
by
the Court on April, 12, 1947. He thereupon filed the present suit
oo•
March 12, 1948, under 0. XX!, r. 103, of the
Code of Civil
Procedure, for a
declaration that he
was entitled to
recover
possession of the suit properties, impleading the appellant and
the third
respondent.
In the
plaint,
apart
from the decree
obtained in the earlier suit no particular averments were made
as to the facts or grounds on which the plaintiff based his title to
the suit properties as against the appellant.
Both in his application dated November 20, 1948, and in his
written
statement,
the appellant objected to the maintainability of the suit on the
grounds that he was not a party to the previous suit and that the
plaint disclosed no cause of action against him.
On March 29,
1950, when the suit was taken up for trial on the preliminary
issue as 10
whether the
suit as framed
was tenable,
an application was made by the plaintiff for the amendment of the plaint
by giving further and better particulars of the claim made in. the
plaint.
The trial judge rejected the application . and dismissed
the suit, but the
High Court, on appeal, allowed the application.
The appellant appealed by special leave and contended that the
application for amendment
should
not
have
. been.
allowed
because ( 1) on
the date. of the application for
amendment,
the
period of limitation for a suit under 0. XX!,. r .. 103, Code of Civil
Procedure, had already expired, and (2) though the attention. of
the plaintiff to the defect in the original plaint had been drawn
as early as . November 20, 1948, no
application
for amendment
was made till March 29, 1950.
Held, that
the
application . for
amendment
was · rightly
allowed by the
High Court, because the amendments did not
really
introduce any
new case
nor alter the
nature of the
reliefs sought, and. though the application was made after the
expiry of the
period of limitation for a
suit . under 0. XX!,
r. 103, Code. of Civil Procedure,
the appellant did not have
to
1957
Pir!!onda
!lon.P,o'nda Patil
v
/(a/gonda
Xhidgondn Patil
596
SUPREME COURT REPORTS
f19571
1neet
;:i. nc\v case and he \Vas
not taken by surprise; nor di<l he
ha\'e co meet a ne\v ciai1n set up
for the first time rtfter the
expiry of the period of lin1itation.
(,'hara11 Das v .. Anzir I<han (L. R. 47 I.1\. 255), relied on.
L. /. Leach & Co. \". /ardine Skinner & Ca. ([1957] S.C.R. 438),
followed.
Observa~ions
of
Batchelor
J. in
Kisandas
Rttpchand
\'.
Rachappa Vithoba (I.L.R. 33 Barn. 644, 649), approved.
CIVIL
APPELLATE
JURISD!CTION :
Civil Appeal No.
228 of 1953.
Appeal
by special
leave from the
Judgment and
Decree dated September 6, 1951, of the
Bomboy
High
Court in Appeal No. 1% of 1950 from the

## Text

S.C.R.
SUPREME COURT REPORTS
595
PIRGONDA HONGONDA PATIL
v.
KALGONDA SHIDGONDA PATIL AND OTHERS
(VENKATARAMA AIYAR, S.K. DAS AND
GAJENDRAGADKAR JJ.)
Amendment of Plaint-Additio11 of furthe1· and better particulars of the claim-Nature of reliefs not altered-Fresh suit on
the date of amendme11t barred by limitation-Whether amendment
should be allowed-Code of Civil Procedure (Act V of 1908), 0. VI,
r. 17. 0. XX/, rr. 97, 99, 103.
S. obtained
a decree of
ejectment against the
third respondent and while attempting to take possession of the properties in
execution of the decree he
was obstructed by the
appellant and
the application for removal
of the
obstruction was dismissed
by
the Court on April, 12, 1947. He thereupon filed the present suit
oo•
March 12, 1948, under 0. XX!, r. 103, of the
Code of Civil
Procedure, for a
declaration that he
was entitled to
recover
possession of the suit properties, impleading the appellant and
the third
respondent.
In the
plaint,
apart
from the decree
obtained in the earlier suit no particular averments were made
as to the facts or grounds on which the plaintiff based his title to
the suit properties as against the appellant.
Both in his application dated November 20, 1948, and in his
written
statement,
the appellant objected to the maintainability of the suit on the
grounds that he was not a party to the previous suit and that the
plaint disclosed no cause of action against him.
On March 29,
1950, when the suit was taken up for trial on the preliminary
issue as 10
whether the
suit as framed
was tenable,
an application was made by the plaintiff for the amendment of the plaint
by giving further and better particulars of the claim made in. the
plaint.
The trial judge rejected the application . and dismissed
the suit, but the
High Court, on appeal, allowed the application.
The appellant appealed by special leave and contended that the
application for amendment
should
not
have
. been.
allowed
because ( 1) on
the date. of the application for
amendment,
the
period of limitation for a suit under 0. XX!,. r .. 103, Code of Civil
Procedure, had already expired, and (2) though the attention. of
the plaintiff to the defect in the original plaint had been drawn
as early as . November 20, 1948, no
application
for amendment
was made till March 29, 1950.
Held, that
the
application . for
amendment
was · rightly
allowed by the
High Court, because the amendments did not
really
introduce any
new case
nor alter the
nature of the
reliefs sought, and. though the application was made after the
expiry of the
period of limitation for a
suit . under 0. XX!,
r. 103, Code. of Civil Procedure,
the appellant did not have
to
1957
Pir!!onda
!lon.P,o'nda Patil
v
/(a/gonda
Xhidgondn Patil
596
SUPREME COURT REPORTS
f19571
1neet
;:i. nc\v case and he \Vas
not taken by surprise; nor di<l he
ha\'e co meet a ne\v ciai1n set up
for the first time rtfter the
expiry of the period of lin1itation.
(,'hara11 Das v .. Anzir I<han (L. R. 47 I.1\. 255), relied on.
L. /. Leach & Co. \". /ardine Skinner & Ca. ([1957] S.C.R. 438),
followed.
Observa~ions
of
Batchelor
J. in
Kisandas
Rttpchand
\'.
Rachappa Vithoba (I.L.R. 33 Barn. 644, 649), approved.
CIVIL
APPELLATE
JURISD!CTION :
Civil Appeal No.
228 of 1953.
Appeal
by special
leave from the
Judgment and
Decree dated September 6, 1951, of the
Bomboy
High
Court in Appeal No. 1% of 1950 from the
Judgment
and Decree dated March 31, 1950, of the Civil Judge,
Senior Division, Kolhapur in Civil Suit No. 23 of 1949.
S. C. Isaacs, S. N. Andlev,
R.ameshll•m·
Nath
ai:d
/. B. Dadachanji, for the ap1;ellant.
Achhru Ram, G. A. De.«1i am! Natmit Lai,
for respondents Nos. 1 and 2.
1957. February 7.
The Judgment of the Court was
delivered by
S. K. DAs J .-This is an appeal by special
leave
from the judgment and decree of the · High
Court of
Bombay dated
Septemher 6, 1951, by which
the said
High Court set aside. on appeal the decree passed by
the Civil Judge (Senior Division)
Koibapur,
in Civil
Suit No. 25/49 and allowed an amendment of the pbnt
at the appellate
sr:1ge, subject
ro
ccrtam
conditions.
in the circumstances stated belov./.
1"'he appeflant before us
\.Vas defendant No. 1 in the
suit.
Respondent:; 1 and 2 arl: the heirs of the original
plaintiff anci respondent No. 3 was defendant No. 2 in
the action.
In 1942 the origiml plaintiff ·filed
a suit
againot
respondent No. 3 for
posscss1011
of the suit
properties and obtained a decree in ejcctmcnt on March
28, 1944.
This decree was confirmed in appeal on July
9, 1945.
U1• a further appeal, the then
Supreme Court
of Kolbpur affirmed the decree on April 2, 1946.
In
the meantime, the original plaintiff made an
application for execution of the decree but was resisted or
•
S.C.R.
SUPREME COURT REPORTS
597
obstructed
by
the
present
appellant
in
obtaining
possession of the said properties.
He then
made an
application under O. XXI, r. 97 of the
Code of Civil
Procedure, complaining of such resistance
or obstruction.
This application was heard and dismissed . under
0. XXI, r. 99 of the Code of Civil Procedure, on April
12, 1947.
On March 12, 1948,
the
original
plaintiff
instituted the suit (out of which
this appeal has arisen)
under 0. XXI, r. 103 of the
Code of
Civil Procedure,
for a declaration that he was entitled to recover possession of the suit properties from the
present
appellant
who was impleaded as the first . defendant.
Prior to its amendment, the plaint stated : "Defenddant No. 2 in collusion
with· defendant No. 1 caused
objection to be submitted against
the said
execution.
The plaintiff had conducted Misc.
Suit No. 5/1946 for
getting possession of the suit
properties, getting the
objection
removed.
However,
that
miscellaneous .
proceeding
has been
decided
against
the
plaintiff.
Therefore,
the plaintiff has
filed the
present suit for
getting declared that the plaintiff
has
right to take
possession of the suit property against defendants
Nos.
1 and 2:" Apart from the
decree
obtained
in
the
eailier suit, no particular averments were made as to
the facts or grounds on which the plaintiff based his
title to the properties in suit as against the
appellant.
An application was
made on behalf of the present
appellant on
November 20, 1948,
in
which
it
was
pointed out that the plaintiff filed the suit on the basis
of the decision in an earlier suit to which the present
appellant was not a party.
It was then stated : "As
the defendant is not
a party in the
said
decree, the
plaintiff will not
acquire
any
ownership
whatever
against the defendant from
the said decree.
And the
plaintiff has not given even
the slightest
explanation
as to how he has ownership
against the defendant. So
permission should not be hereafter given to the plaintiff
to make amendment in respect of showing ownership".
A copy of this application was made over to the learned
pleader for the plaintiff who noted thereon as follows :
"The plaintiff's suit is
under 0. XXI, r. 103
of the
Code of ·Civil Procedure. Hence relief which can be
1957
Pirgonda
Hongonda Patil
"·
Kaigotida
ShidgonJa Pali.
S. K. Das].
1957
Pirgonda
Hc11~onfln Patil
v.
II... lg nda
Shidgo11da Patil
S. J:. I>as ].
598
SUPREME COURT REPORTS
[1957]
granted as
per this
provision may be granted."
An
objection was also taken with regard to the description
of the suit properties in the schedule.
This objection
was however met by making the necessary amendment.
On December 20, 1949, the present appellant
filed
his written statement and, inter alia,
took the objection
that the suit was not maintainable against him, as the
plaint disclosed no cause of action so far as
he was
concerned.
A preliminary issue was
then struck
on
January 19, 1950, which raised the
question
whether
the suit as framed was tenable. against the
appellant.
When the trial of this issue began, an application
was
made on
March 29, 1950, on
behalf of the
original
plaintiff for
permission to
give
further
and better
particulars of the claim
made in the
plaint, an<l for
that purpose the plaintiff wanted to
insert
a
new
paragraph as para !(a) in the plaint and a few sentences
in para 3.
It is necessary to quote these here, because
these were the amendments
subsequently
allowed
by
the learned
Judges of the High Court of Bombay by
their order dated
September 6, 1951.
The new
paragraph
was
m
these terms : "In
the
Ichalkaranii
village
there
are
two
independent
Patil
families
'taxima', viz., Mulki (Revenue) Patil and Police
Patil.
The suit properties are the
lnam lands in the Police
Patil family.
A woman by name Bhagirathibai, wife of
Shivagonda Patil, was the
Navwali 'warchi Vatandar'
(representative Vatandar) of the
Police
Patil family.
This woman died in the year 1936.
Due to the death
of the woman the plaintiff acquired
heirship-ownership over
the suit
property as the near heir.
The
suit properties were in the possession and under the
vahiwat of defendant No. 2 without right.
Therefore.,
the plaintiff filed Suit No. 3/1942 for getting declared
his ownership of the suit property and for getting the
possession thereof.
In
Appeal No. 9/44 and Supreme
Appeal No. 5/46 preferred therefrom the
plaintiff was
unanimously declared to be the heir and the owner and
the possession
of the suit properties had been granted
to the plaintiff."
The sentences to he added to
paragraph 3 were : "Defendant No. 1 is
from the
Mulki
•
S.C.R.
SUPREME COURT REPORTS
599
(Revenue) Patil family.
He has nothing
to
do with
the suit property in the Police Patil family."
Ry his order dated March 31,
1Q50,
the learned
Civil Turlge reiected the application and on the same
day he dismissed the suit on the ground that the plaint
made out no
case
of title against
defendant No. l,
appellant before us, who was not a party to the earlier
suit in eicctmcnt in which the plaintiff had obtained a
decree against defendant No. 2.
From
this
judgment
and decree of the learned
Civil
Judge an appeal was
taken to the High Court of
Bombay and the learned
Judges of the
High
Court allowed an
amendment
of the pbint after
putting
the plaintiff on terms
as
to costs, etc.
While
allowing
the amendment
the
learned
Judges observed: "\Ve realise that by doing
what
we
propose to do , we may deprive
the first
· defendant of a verv valuable right which he daims he
bas acquired, namely, that of pleading a bar of limitation against the amended plaint,
but we ,ire guided
more in this matter by rc.:gard
to the
principles of
substantial justice
and we think that if
we can make
sufficient
compensation to
the
first
defend:mt
by
making drastic orders of costs in his favour and against
the plaintiff, we shall not be doing
any injustice to
him.
This is, after all, a question
of title
to
the
property and we would be justifird
111
making
this
obscn·ation that when the suit in
ejectment was filed
by
Shidgonda against Pirgonda
Annappa
in the year
1942 he based it on his title to the suit
property and
it was onlv against
Pirgonda
Annappa that
he
had
obtained the decree. \Vhrn this decree which he had
obtained
agamst
Pirgonda
Annappa,
the
second
defendant, was mentioned as a starting
point in the
plaint as it came to be filed, it would not be stretching
too much
of a point
in favour
of the
plaintiff to
observe 'that the dc.:cree which he had obtainc.:d against
the second defendant, having
been obtained
on
the
strength of his title to the suit property, was really one
of his documents of title. . . . . . . . . . . . . . . So far as the
first defendant was
concerned, the averment nece;sary
under 0. XXI, r. 103, of the
Cod~ of
Civil Procedure,
was that the first defendant was wrongfully obstructing
1957
Pir,~onda
l-]ongunJa Pat:l
v.
Kalgonda
S!iidgonda Patil
S. K. Da,].
1957
Pirgonda
Hongonda Patil
v.
Kalganda
Shidganda Patil
S.K. Da;J.
600
SUPREME COURT REPORTS
(19571
the plaintiff from obtaining
possession of
the
suit
property in execution
of the decree
which he
had
obtained against the 2nd defendant in a suit
regularly
constituted in that behalf.
This being
the position,
we think we are not doing
any
injustice
to the
first defendant
if
we allow the plaintiff
to amend
his plaint even at this late stage by putting in
the
paragraphs in the plaint as suggested
by him
in his
application
for further
and better particulars
filed in
March 1950."
The appellant then obtained special leave from this
Court, and filed the present appeal.
The m:iin
point
which has been argued
before
us on
behalf
of the
appellant is that in the
circumstances of this
case the
learned
Judges of the
High Court were
wrong in
allowing an amendment
of the plaint at
such a late
stage.
It may be stated here th:it learned
counsel
for
the appellant did not argue that the appellate Court
had no jurisdiction or power to allow the amendment.
His submission
was that even
though the
appellate
Court had such power or jurisdiction,
that
power
should not have been exercised in the
circumstances
of the present case.
Two such
circumstances
were
greatly emphasised
before us.
One
was
that
the
period of limitation for a suit under 0. XXI, r. 103, of
the
Code of Civil
Procedure, had
already
expired
before March 29, 1950, on which date the
application
for amendment or for giving further and better particulars was made.
The second
circumstance
which
learned counsel for the appellant emphasised
was that
the attention of the plaintiff
to the
defect in
the
original plaint had been drawn by the application filed
on behalf of the appellant on
November 20, 1948, and
in spite of that application,
no
amendment was asked
for till March 29, 1950.
Both these circumstances were fully considered by
the learned
Judges of the
High Court. It is worthy
of note that the period of limitation for a suit under
0. XXI, r. 103 of the Code of Civil Procedure, namely,
one year from the date
of the adverse
order made
under r. 99 of 0. XXI, had expired some time before
November 20, 1948, on which date the appellant made
S.C.R.
SUPREME COURT REPORTS
601
his first application
pomtmg out
the defect in the
plaint, the adverse order under 0. XXI, r. 99, having
been made on April 12, 1947.
The application
which
the appellant
made on
November 20, 1948, had not
the merit of such beneficent purpose as is now sought
to be made out by learned counsel for the appellant.
When the application was made, the
period
of limitation had already expired, and the
appellant
very
clearly said that no permission should be given to the
plaintiff to make
an amendment
thereafter.
We do
not therefore think that the appellant can make much
capital out of the application made on his behalf on
November 20, 1948.
Recently, we have had occasion to consider a similar
prayer for amendment in L. f. Leach & Co. v. Jardine
Skinner & Co. ( 1) where, in allowing an amendment of
the plaint in an appeal before us, we said : "It is no
doubt true that
courts would, as a rule,
decline to
allow amendments, if a fresh
suit on the
amended
claim would be barred by limitation on the date of the
application.
But that is a factor
to
be taken into
account in exercise of
the discretion
as to whether
amendment should be ordered,
and does not affect the
power of the court to order it, if that
is required in
the
interests
of
justice."
These
observations
were
made in a case where damages
were originally claimed
on the footing of conversion of goods.
We held, in
agreement with the learned Judges of the
High Court,
that on the evidence the
claim for
damages on the
footing of conversion
must fail.
The plaintiffs
then
applied to this
Court for amendment of the plaint by
raising, in the
alternative, a claim for
damages for
breach of contract for non-delivery of the goods.
The
application was resisted by the
respondents and
one
of the grounds
of resistance was that
the period
of
limitation had expired.
We accepted
as
correct the
decision in Charan Das v. Amir Khan (2) which laid
down that "though there was full power to make the
amendment, such a power should not as a
rule be
exercised where the effect was to take away from a
defendant a legal right which had accrued to him by
(1) [1957) S.C.R. 438.
(2) (1920) L.R. 47 I.A. 255.
1957
Pirgonda
Hon&imda Patil
v.
KaJgonda
Shidgonda Patil
S. K.Das].
1957
Pirgotlda
Hongonda Patil
v.
Kalgoruta
Shidgonda Patil
S. K. Das].
602
SUPREME COURT REPORTS
[1957}
lapse of time ;
derations were
of the case".
yet there were
outweighed by
cases where such consithe special circumstances
,
As pointed out in Charan Das' case (1 ), the power
exercised
was undoubtedlv one within the discretion
of the learned
Judges.
All that can be urged is that
the discretion was exercised on a wrong principle.
We
do not think that it was
so exercised in the present
case.
The facts of the
present case are very
similar
to those of the case before their Lordships of the Privy
Council.
In the latter,
the
respondents sued for a
declaration of their right
of pre-emption
over
certain
land, a form of suit which would not lie having regard
to the proviso to s. 42 of the Specific
Relief Act (I of
1877).
The trial
Judge and the first appellate Court
refused to allow the plaint to be amended by claiming
possession on pre-emption, since the time had expired
for
bringing a suit
to enforce
the
right.
Upon a
second appeal the
Court allowed the amendment to be
made, there being no ground for suspecting
that the
plaintiffs had not acted in good faith, and the proposed
amendment not altering the nature of the relief sought.
In the case before us, there was a similar defect in the
plaint, and the trial
Judge refused to allow the plaint
to be amended on the ground that the period of limitation for a suit under 0. XX!, r, 103, of the Code of
Civil Procedure, had expired.
The learned
Judges of
the
High
Court rightly pointed out that the mistake
in the trial Court was more that of the learned pleader
and the proposed amendment did not alter the nature
of the reliefs sought.
Learned counsel for the appellant referred us to the
decision in Kisandas Rupchand v. Rachappa Vithoba (')
and pbce<l
great
reliance
on the
observations
of
Beaman J. at
p. 655: "In my op1mon, two
simple
tests, and two only, need to
be applied,- in order
to
ascertain whether a given case is within the principle.
First, could the party asking to amend obtain the
same quantity of relief
without the amendment ? If
not,
then it follows
necessarily
that the
proposed
amendment places the other party at a disadvantage,
(•i [•920] L.R. 47 I.A. 255.
(2) [•900] LL.R. 33 Bom. 644.
S.C.R.
SUPREME COURT REPORTS
603
it allows his opponent to obtain more from him than
he would have been able to obtain but for die amendment.
Second, in those circumstances, can the party
thus placed at a disadvantage be compensated
for it
by costs ? If not, then the
amendment
ought
not,
unless the case is so peculiar as to be taken out of the
scope
of the rule, to
be allowed."
He contended
that the first test laid down in the
aforesaid
observations was
not fulfilled in the
present case.
We do
not agree with this contention.
First, it is not feasible
nor advisable to encase a discretionary power within
the strait jacket of an inflexible
formula.
Secondly,
we do not think
that the
"quantity
of
relief,"
an
expression somewhat difficult of appreciation or application in all circumstances, was in any way
affected
by the amendments allowed to be made in this case.
·what happe'ned in the
present case was that there
was a defect in the plaint
which stood in the way of
the plaintiff asking for the reliefs he asked for ; that
defect was removed
by the amendments.
The quality
and quantity of the
rel~tfs sought remained the same ;
whether the reliefs should be granted
or
not is
a
different matter as to
which we are not called upon to
express any opini)n at this stage.
We think that the
correct principks were enunciated
by
Batchelor J. in
hi' judgment in the
same case, viz., Kisandas
Rupchand's case ( 1 ), when he said at pp. 649-650:
"All
amendments ought to be
allowed
which satisfy the
two
conditions
(a) of not
working injustice to the
other side, and (b) of being necessary for the purpose
of determining the real questions i11 controversy between the
parties .......... but
I refrain
from citing
further authorities, as, in
my opinion, they all
lay
down precisely the same doctrine. That doctrine,
as
I understand it, is that amendments
should be refused
only where the other party c;rnnot be placed in the
same position as if the pleading
had been originally
correct, but the amendment would cause him an injury
which could not be compensated in costs.
It is merely
a particular case
of this
general
rule that where a
plaintiff seeks to amend by setting up a fresh claim in
(1) [1900] l.L.R. 33 Born. 6H.
1957
Pirgonda
Jlongonda Patil
v.
Kalgonda
Shidgonrfa Patil
S. K. Das].
1957
Pirgondo
Hongonda Patil
v.
Kalgo11da
Shid.1!,onda Patil
S. 1-.. Dns }.
604
SUPREME COURT REPORTS
[1957]
respect of a cause of action which since the institution
of the
suit had
become
barred
by limitation, the
amendment must be refused ; to allow it would be to
cause the defendant an injury which could not be
compensated in costs
by dcpri ving him of a good
defence to the claim.
The ultimate test therefore still
remains the
sa111c : can
tl1c
a111endment be
allowed
vvithout
injustice to t11e ot!1er side, or
can it not?"
Batchelor J.
made thccc observations in a case where
the
claim
was for
dissolution of
partnership
and
J.ccounts, the plaintiffs alleging th:it in pursuance of a
p:irtnership
agreement they h:'d
delivered
Rs. 4,001
worth of cloth to the defendants.
The
Subordinate
judge found that the plaintiffs
did deliver the cloth,
but came
to the C0'1c!usion that no partnership was
created.
At the ap1dlate stage, the plaint.iffs abandoned the plea of partnershi!' and prayed for
leave to
amend
by
adding a prayer
for the
recovery
of
Rs. 4,001.
At that d::te the claim for the money
was
barred by
limitation.
It was held
that the amendment was rightly allowed, as the claim was not a new
claim.
The same principles, we hold, should apply in the
present case. The ~mendments do not really introduce
a new case, and the application filed by the appellant
himself showed that
he
was not taken by surprise ;
nor did he have to meet a
11etu claim set up for
the
first time after the expiry of the period of limitation.
For these reasons, vve sec no merit in the appeal,
which is accordingly dismissed with costs.
Appeal dismissed.