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Nagendra Nath Dey Vs. Suresh Chandra Dey - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Judge
Reported in(1932)34BOMLR1065
AppellantNagendra Nath Dey
RespondentSuresh Chandra Dey
DispositionAppeal allowed
Excerpt:
.....sought are not patties to the appeal, time only runs against the decree-holders from the date of the appellate court's decree dismissing the appeal.;equitable considerations are out of place in the construction of the statute of limitation, and the strict grammatical meaning of the words must be given effect to. - - 7. on august 27,1920, madan mohan presented an application to the high court purporting to be an appeal from the 'order 'of the subordinate judge of june 24, 1920, and alleging, what was clearly untrue, that no decree had been drawn up. but in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their lordships think, the only safe guide......were nagendra nath dey and pulin behari dey, who are the appellants before this board, and madan mohan and his son, who are respondents nos. 24 and 27 respectively. the position at that date was that some of the co-sharers were mortgagees and all the co-sharers were mortgagors.3. in 1907, after the shares of the several co-sharers in the partition suit had been alloted to them and the receiver discharged, madan mohan and his son instituted the suit out of which the present appeal arises in the court of the subordinate judge of hooghly to enforce the mortgage. in this suit madan mohan claimed that the appellants (defendants nos. 11 and 12) had assigned their interest in the mortgage to him. the subordinate judge upheld his claim, and after taking accounts between the parties,.....
Judgment:

Dinshah Mulla, J.

1. This appeal raises a question as to the construction of Article 182 of Schedule I of the Indian Limitation Act, 1908.

2. In a suit brought many years ago for partition of certain properties, held jointly by the parties to this appeal and their predecessors, a receiver was appointed with power to raise a loan on the security of a mortgage of the properties. The receiver borrowed Rs. 18,000 from some of the co-sharers, and on July 10,1894, he executed a mortgage of the properties in their favour. Amongst the mortgagees were Nagendra Nath Dey and Pulin Behari Dey, who are the appellants before this Board, and Madan Mohan and his son, who are respondents Nos. 24 and 27 respectively. The position at that date was that some of the co-sharers were mortgagees and all the co-sharers were mortgagors.

3. In 1907, after the shares of the several co-sharers in the partition suit had been alloted to them and the receiver discharged, Madan Mohan and his son instituted the suit out of which the present appeal arises in the Court of the Subordinate Judge of Hooghly to enforce the mortgage. In this suit Madan Mohan claimed that the appellants (defendants Nos. 11 and 12) had assigned their interest in the mortgage to him. The Subordinate Judge upheld his claim, and after taking accounts between the parties, passed a preliminary mortgage decree declaring inter alia the liability of the appellants to pay a sum of Rs. 4,467, which they accordingly brought into Court.

4. On appeal to the High Court at Calcutta a compromise was effected between the parties, and on June 10, 1913, a preliminary decree in supersession of the decree of the Subordinate Judge was passed by the High Court in terms of the compromise.

5. Under this decree Madan Mohan's claim against the appellants was disregarded, and the appellants were shown as mortgage-creditors for Rs. 14,615-15-3, The appellants thereupon applied to the Subordinate Judge for the withdrawal of the Rs. 4,467. Madan Mohan opposed their application, reasserting his former claim, but his contention was overruled, and the appellants were allowed to withdraw their deposit. Madan Mohan appealed to the High Court, but his appeal was dismissed,

6. In the preliminary decree as passed by the High Court the co-sharers were ranged into two groups, one of decree-holders consisting of six sets of co-sharers, and the other of judgment-debtors consisting of eight sets of co-sharers. After the date of the decree two out of the eight judgment-debtors paid the amount due from them under the decree. The rest did not pay, and on June 4, 1916, Madan Mohan applied to the Subordinate Judge for a final mortgage decree, In his application he again claimed that the appellants had assigned their interest in the mortgage to him, and prayed that an order should be made to that effect On June 24, 1920, the Subordinate Judge delivered his judgment disallowing Madan Mohan's claim, and a final decree was passed for the sale of the mortgaged properties that had come to the share of the remaining six judgment-debtors. The decree was drawn up on August 2, 1920, but properly dated as of June 24 It contained a declaration, in conformity with the judgment, that the appellants were entitled to payment of the above-mentioned sum of Rs. 14,615-15-3 out of the proceeds of the sale of the properties.

7. On August 27,1920, Madan Mohan presented an application to the High Court purporting to be an appeal from the ' order ' of the Subordinate Judge of June 24, 1920, and alleging, what was clearly untrue, that no decree had been drawn up. His objection was only to the decision against him in respect of the assignment, and he joined as parties to the appeal only the other decree-holders and not the judgment-debtors.

8. The appeal, though irregular in form, as not being an appeal against the decree of the Subordinate Judge, and being insufficiently stamped for this purpose, was admitted and heard in due course by Woodroffe and Suhrawardy JJ, Objection was taken to the form of the appeal; Madan Mohan asked to amend but this was refused, In the result, the appeal was dismissed both on the ground of irregularity and upon the merits, and the dismissal was embodied in a decree of the High Court dated August 24, 1922.

9. It is upon the effect of this appeal that the decision of the question under Article 182 of the Indian Limitation Act now before the Board depends.

10. On October 3, 1923, the appellants presented an application to the Subordinate Judge for execution by sale of the mortgaged properties. It was opposed by some of the judgment-debtors the present respondents Nos. 1 to 4, on the ground that it was barred by Article 182. The material portion of that article is in these terms:-

_________________________________________________________Description of Period of Time from which periodapplication. limitation. begins to run.__________________________________________________________For the execution Three years ... 1. The date of the decreeof a decreeor order or order; orof any Civil Courtnot provided for by 2. (where there has beenarticle 183 or by an appeal) the date ofsection 48 of the Code the final decree or orderof Civil Procedure, of the Appellate Court.1908._________________________________________________________________

11. If the three years are to be calculated, as the respondents contend, from the date of the decree of the Subordinate Judge, viz. June 24, 1920, the application was manifestly out of time; it was within time if the critical date is that of the decree of the High Court of August 24, 1922, and the decision of this question depends on whether Madan Mohan's appeal which was dismissed on the latter date was an appeal within the meaning of the second clause in the third column of the article cited above. The Subordinate Judge held that it was, and that the application was in time; the judgment-debtor-respondents appealed, and the High Court took the opposite view, and dismissed the application of the appellants.

12. The dismissal is supported upon three grounds, namely, (1) that Madan Mohan's application of August 27, 1920 (hereinafter for convenience referred to as the 1920 appeal), was by reason of its irregularity not an appeal at all, but merely an abortive attempt to appeal; (2) that an appeal in order to save limitation under Clause 2 of the article must be one to which the persons affected,i.e., in the present case the judgment-debtors, were parties; and (3) that it must also be one in which the whole decree was imperilled.

13. In their Lordships' opinion there is no force in the first of these contentions. There is no definition of appeal in the Code ofCivil Procedure, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent. The 1920 appeal was admitted and was heard in due course, and a decree was made upon it.

14. The second and third contentions have been the subject of much difference of opinion in India, In Mashiat-un-nissa v. Rani I.L.R. (1889) All 3 three of the Judges in the Full Court took one view, and two the other, In Gopal Chunder Manna v. Gosain Das Kalay I.L.R. (1898) Cal. 591 a Calcutta Full Bench followed the Allahabad minority, though drawing a distinction between cases of joint and of several decrees. Subsequently further differences of opinion manifested themselves even in the Calcutta Court; see Christiana Sens Law v. Benara-shi Proshad Chowdhury (1914) 19 C.W.N. 287 (upon which the judgment of the High Court in the present case was based); and Satish Chandra Chaudhwri v. Girish Chandra Chahmvarty I.L.R. (1920) Cal. 813 and Dewan Abdul Alim v. Abdul Hakam I.L.R. (1926) Cal. 901 in both of which cases the opposite view seems to have prevailed. In the courts of Madras, Bombay and Patna, the view which was taken by the minority in the Allahabad case, and which favours the present appellants, has ultimately prevailed.

15. Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the article: ' where there has been an appeal,' time is to ran from the date of the decree of the appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorney path of execution, which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court, But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of Juno 24, 1920, time only ran against the appellants from August 24, 1922, the date of the appellate Court's decree. They are, therefore, in agreement upon this point with the Subordinate Judge, and they think that the order passed by him on August 4, 1924, was right.

16. Their Lordships will accordingly humbly advise His Majesty that this appeal should be allowed, that the decree of the High Court dated February 16, 1926, should be set aside, and the order of the Subordinate Judge dated August 4, 1924, restored. The respondents Nos. 1 to 4 must pay the cost of the appellants in the High Court and before this Board.


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