1. On the 13th March 1905 this Court gave judgment for the plaintiff for the amount due under the mortgage on which the suit was brought, on the footing that the period of limitation applicable was sixty years under Article 147 of the second Schedule of the Limitation Act of 1877.
2. This view was in accordance with a series of previous decisions as to the scope of Articles 147 and 132.
3. On appeal, however, by the defendant to the Privy Council, their Lordships declared that, on the true construction of the Limitation Act, the article applicable was No. 132, and they remitted the case to this Court to be disposed of in accordance with this declaration Vasudeva Mudaliar v. Srinivasa Pillai 30 M. 426; 17 M.L.J. 444; 11 C.W.N. 1005; 4 A.L.J. 625; 6 C.L.J. 255; 2 M.L.T. 333; 9 Bom. L.R. 1104.
4. If nothing further had occurred it would now be necessary for us to re-open the appeal on the footing that the twelve years' rule of limitation in Article 132 was primarily applicable, and we should have to consider the plaintiff's pleas that by reason of acknowledgments and so forth his claim was not barred even under that rule. But in the meantime the legislature intervened. The declaration of the Privy Council was made on the 22nd July, 1907, and while the case so remitted was pending in this Court the legislature on the 7th August, 1908, passed the Indian Limitation Act, 1908.
5. Section 1 of that Act directs that Section 31 shall come into force at once, and Section 31 enacts: '(1) Notwithstanding anything contained in this Act or in the Indian Limitation Act, 1877, in the territories mentioned in the second Schedule a suit for foreclosure or a suit for sale by a mortgagee may be instituted within two years from the date of the passing of this Act, or within sixty years from the date when the money secured by the mortgage became due, whichever period expires first, and no such suit in the said territories instituted within the said period of sixty years and pending at the date of the passing of this Act, either in a Court of first instance or of appeal, shall be dismissed on the ground that a twelve years' rule of limitation is applicable'.
6. The plaintiff contends that the latter part of this clause is applicable to the present case. We are of opinion that the contention is valid. The suit is one in the territories mentioned in the second Schedule of the Act: it was instituted within sixty years from the date when the money secured by the mortgage became due: and it was pending in this Court as a Court of Appeal at the date when the Act was passed. We cannot, therefore, dismiss the suit (in whole or in part) on the ground that a twelve years' limitation is applicable.
7. We are unable to accede to the defendant's contention that Section 31 of the Act does not apply to the present case. The object of the legislature was to alleviate the hardship that would otherwise have resulted to mortgagees in consequence of the period of limitation being declared to be only twelve years instead of sixty, which was the period which had previously been authoritatively declared by this Court to be applicable in suits of the kind. We find nothing in the words of the Act or in the intention of the legislature, to justify us in excluding the plaintiff from the benefit of Section 31. That being so, the plaintiff's claim must be dealt with on the footing that it is not barred by limitation.
8. This is the footing on which it has been dealt with in our former judgment of the 13th March 1905. The defendant desires to re-open the matters decided in that judgment, but we do not think that he should be allowed to do so. Their Lordships have expressed no opinion on any of the matters decided in that judgment, and we see no reason why the defendant should be allowed to re-open them. It, therefore, only remains for us to re-affirm that judgment in principle. But the defendant obtained a stay of execution pending disposal of his appeal and the plaintiff now asks us to fix a new date for payment of the amount due and grant the plaintiff a decree for the amount due with interest at the contract rate of 10 1/2 per cent. with annual rests up to the date so fixed. The defendant opposes this but we think the plaintiff is within his rights in claiming it. The defendant does not require any further time for payment. We, therefore, fix to-day as the date for payment of the amount due calculated as above and affirm the decree in other respects.
9. With regard to costs, the plaintiff's claim was valid in accordance with the law as declared by the High Court until the decision of the Privy Council declared the law to be otherwise. We, therefore, think the plaintiff should have his costs prior to the Privy Council appeal. Costs before the Privy Council have been awarded to the defendant, and we think that the parties may each be left to bear their own costs in this Court subsequent to the decree of the Privy Council.