1. The first question raised in this appeal is whether the plaintiffs, mortgagors, are entitled to execute their decree, one for redemption, by asking the Court to sell the mortgaged property. It is prima facie concluded in their favour by Govinda Taragan v. Veeran 12 Ind. Cas. 432, since we have been shown no case in which that decision has been doubted, and one Civil Miscellaneous Appeal No, 99 of 1915, in which it has been followed, and since Mr. Anantha Krishna Iyer for defendants declined to argue against its correctness. He has relied only on the fact that the decree provides for a sale at the instance only of the mortgagee, But that appears to have been the case also in the decision referred to. This objection to the order under appeal must, therefore, be disallowed.
2. The more important contention before us is, however, that the plaintiff's application for execution was made too late; and certainly it was so, unless time ran, as they contend, from the date, 10th February 1915, on which an order was passed by this Court returning their memorandum of appeal against the decree for presentation to the District Court, as the proper Court to entertain it. Was the High Court, in these circumstances, 'the Appellate Court' and was this its 'final order' within the meaning of Article 182 of Schedule I of the Limitation Act.
3. This Court's order in no degree degree the appeal; and its final character has been supported mainly by comparison of its effect, with that of the withdrawal of the appeal, reference to which as a starling point was in trod used into the Article by its amendment in 1908. But this argument is unsustainable, if, as in Peria Kovil Ramanuja Peria Jeeyangar v. Lakshmi Doss M. 1 : 16 M.L.J. 393 , and Fuzl-ur-Rahman v. Shah Muhammad Khan 30 A. 335 , which were re produced in the amendment, there is, besides the withdrawal, an order dismissing the appeal as withdrawn. Further, there is an order of the Appellate Court, Such as the Article contemplates directly. And it may be doubted whether there can be cases of withdrawal without such an order. For the procedure for withdrawal of a suit with have to sue again under Order XXIII corresponds with nothing in the specification of the powers of the Appellate Court in Section 107, Civil Procedure Code. But it is useless to consider further the applicability of the reference in the Article to withdrawal, or the analogy between it and the order in question at present when, in my opinion, plaintiffs must fail, because this Court was not the Appellate Court, inasmuch as the proceedings before it were not within its jurisdiction.
4. In Akshoy Kumar Nundi v. Chunder Mohun Chathati 16 C. 250 it was held that an appeal is presented, for the purpose of the Limitation Act, when it is presented to the proper Court and in the present case in which this Court returned the appeal memorandum for want of jurisdiction, there was no legally constituted appeal and no final order by the Appellate Court. It is suggested that the order of return was final so far as this Court was concerned, and that it was the order of the Appellate Court because this Court has appellate powers, a distinction being attempted between failures of jurisdiction on territorial grounds and on the pecuniary grounds referred to in this Court's order. I am unable to follow that distinction and it was supported by no authority. The remainder of the argument in inconsistent with reference to the not an 'Appellate Court in the Article' and its best support was the reference to Krishnaswami v. Kanikasabai 14 M. 183 and the cases therein cited. But the principle for which plaintiffs contend was referred to only obiter in this Court's decision and was applied in Matra Mondal v. Hati Mohun Mullick 17 C. 165 and Nidhi Lal v. Mathar Husain 7 A. 230 to proceedings actually completed in the wrong Court, through mistake and without objection and was authorised by the reference in the various Civil Courts Acts concerned to the jurisdiction in question as concurrent. Here we are concerned with the more general principle that no party shall be allowed to obtain a longer period of limitation, on the ground of his own mistake, and no attempt has been or, indeed, could fairly be made to invoke Section 14 or any other provision of the Limitation Act, by which exceptions to it are recognised as authorising plaintiff's Contention. As there was no final order of the Appellate Court, time cannot be calculated from one, and the application was, therefore, cut of time and should have been dismissed.
5. The appeal is allowed, the lower Appellate Court's order being set aside and that of the Subordinate Judge being restored with costs throughout.
Seshagiri Aiyar, J.
6. The decree under execution is one for redemption and was passed on the 19th March 1898. The time fixed for payment expired before the new Civil Procedure Code same into force. An appeal was preferred to the High Court within the time limited by law. It was returned on the 10th February 1915 for representation to the proper Court, as the High Court was of opinion that the appeal lay to the District Court and not to itself. The present application for execution was made on the 21st September 1916 for sale of the mortgaged property.
7. Two objections were taken to it. The first was that, under the decree, the mortgagor is not entitled to apply for sale. The second is that the application was barred by limitation. The District Judge overruled both these objections.
8. The first point is, covered by Govinda Taragan v. Veeran 12 Ind. Cas. 432 : (1911) 2 M.W.N. 823. In that case the learned Judges were of opinion that although expires power was given by Section 93 of the Transfer of Property Act, only to the mortgagee to apply for sale, the mortgagor has also an inherent right to apply for a similar order. This decision was followed in Civil Miscellaneous Appeal No 99 of 1915 to which my learned brother was a party. Speaking for myself, I should have required more argument to convince me of the correctness of the view taken in these two decisions and would have suggested a reference to the Full Bench, if our decision depended upon the first point alone. Notwithstanding the argument addressed to us by the learned Advocate General regarding the procedure adopted in England by which power is reserved to the mortgagor to apply for sale where a decree for redemption is passed, I am not convinced that we should read into Section 93 of the Transfer of Property Act or into Order XXXIV, Rules 7 and 8 snob, a power. However, as the conclusion which I have come to is not dependent upon the view I take on the first point, and as Mr. Ananthakrishna Aiyar, who appeared for the appellant, did not ask us to dissent from the view in Gobinda Taragan v. Veeran 12 Ind. Cas. 432 , but only attempted to distinguish that case from, the present, I do not propose to say anything more about it.
9. The second question is practically bare of authority. The point for determination is, that where an appeal is presented to a Court to whish appeals do not ordinarily lie and that Court ultimately passes an order returning the appeal for presentation to the proper Court, whether such an order is within Article 182(2) of the 3rd column of the First Schedule of the Indian Limitation Act. That clause runs thus: 'Where there has been an appeal, the date of the final decree or order of the Appellate Court or the withdrawal of the appeal.' The words or the withdrawal of the appeals were inserted by the Amending Act of 1905, Is the order of the High Court returning the plaint for presentation to the proper Court, an order of the Appellate Court or can it be regarded as a withdrawal of the appeal?
10. Under the Civil Courts Act, III of 1873, Section 13, the Legislature has prescribed which shall be the Appellate Court and the circumstances under which appeals from one Court can he taken to another.
11. In conformity with that Act, in the per sent case the view of the High Court was that the subject-matter of the Original Suit was above Rs. 2,500 and below Rs. 5,000 in value and that, conesquently, an appeal Jay to the District Court and not to the High Court. The language of the second clause of Article, 182 which I have quoted refers to the Appellate Court. In my opinion, that language means that the Appellate Court should be the proper Appellate Court, not any Appellate Court which a party bona fide or, otherwise has chosen to file an appeal in. The learned Advocate-General, who appeared for the respondent, contended that the High Court has a general power of hearing appeals from the Subordinate Courts. It is true that by virtue of Section 21 of the Civil Procedure; Code, the High Court can withdraw an appeal, in any of the Subordinate Courts and hear it itself but the disposal of an appeal in the exercise of the powers given by Section 24 would not constitute the High Court the Appellate Court as contemplated by Clause (2) of Article 182 of the Limitation Act.
12. It was also contended before UB that all appellate authorities must be regarded as possessing fundamental jurisdiction to hear appeals. The argument was as was held in Krishnasami v. Kanakasbai 14 M. 183 as there is a general power in a Subordinate Judge or District Judge to hear suits whish originally, a District Munsif alone can try; similarly, there is a general power in the High Court to hear the appeals, which would be heard only by a District Judge or a Subordinate Judge.
13. The language of Section 24, whish son-templates an order of transfer, does not indicate the existence of such a general power. The right of appeal is the creature of the Statute, and the right to resort to particular grades of the tribunal, is equally a statutory right and not a common law right. It is because of the powers of supervision whish are vested in the High Court under the Charter Act and by the Letters Patent Act that the Legislature has 6nasted, under Section 24 of the Code of Civil Procedure, that the High Court an withdraw to its own file appeals pending in the lower Courts. Moreover, Section 15 of the Code of Civil Procedure provides that every suit shall be instituted in the Court of the lowest grade competent to try it. In my opinion, this provision is applicable to appeals also.
14. Section 96 of the Code provides that an appeal shall lie from, every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decision of such Court. I take it that the authorisation herein referred to is what is contained in the Civil Courts Act of each of the Presidencies. Apart from authority, therefore, on the construction of the above sections and on general principles of juris-prudence, I am of opinion that Clause (2) of Article 182 should be interpreted as referring to the Appellate Court whish ordinarily is empowered to hear appeals from the Subordinate Courts. If we make departure from this rule, there is nothing to prevent a suitor from claiming that the time during whish an appeal has been pending in a Revenue Court in which he has wrongly filed an appeal should be deducted in computing the period of limitation.
15. In this connection, I am not dear that, even if the High Court can be regarded as the Appellate Court within the meaning of that expression in Clause (2) of Article 182, the order directing the return of the plaint for presentation to the proper Court is within the same Clause. I attach no importance to the fast that the order itself was not complied with, as the appeal was never presented to the Subordinate Judge. As at present advised, I am of opinion that the order contemplated is one whish disposes of the appeal on the merits in some form, and not simply one whish intimates to the party that the appeal should be filed elsewhere. I may here refer to the decision of the Judicial Committee in butuk Nath v. Munni Dei 23 Ind. Cas. 644, where it was held that an order of the Privy Council dismissing an appeal for default of prosecution is not an order in Council, contemplated by Article 182. The reason for that dictum is that there was no adjudication on the merits. I confess that the introduction of the clause by the Amending Act 'or withdrawal of the appeal' to some extent weakens this suggestion of mine, but in the case of a withdrawal--I take the withdrawal to be an unconditional one--there is an end to the litigation; but from the order returning the appeal for presentation to a proper Court, the same result does not necessarily follow. It is not a strained construction upon the second clause of Article 182 to say that the decree, order, or with, drawal contemplated must all have the effect of putting an end to the litigation. However that may be, as I am of opinion that the order in question was not passed be the Court contemplated in Clause (2) the respondent is not entitled to claim that limitation starts against him only from the 10th February 1915 and not earlier. When we remember that, under the Indian Law, there is nothing to prevent a party entitled to a benefit under the decree from executing that decree, there is no necessity for reading into the Article words whish are not to be found there. Wazir Mahton v. Lulit Singh 9 C. 100 contains observations whish, to some extent, support the respondent, The appeal in that case was certainly a competent one. I do not feel pressed by the obiter dictum contained in that judgment. Akshoy Kumar hundi v. Chunder Mohun Chathati 16 C. 250 is not entirely reconcilable with the observations in Wozir Mahton v. Lulit Singh 9 C. 100 relied on by the District Judge. Very recently the Judicial Committee held that, where an application was presented bona fide to a Court which had no jurisdiction to execute a decree, the application was not one made to the proper Court in accordance with the law, within the meaning of these words in Clause 5 of Article 182. The principle of that decision applies equally to the present case. Vide Setrucherla v. Maharaja of Jeypore 51 Ind. Cas. 185: (1919) M.W.N. 502 .
16. For all these reasons, I am of opinion that the decision of the District Judge must be reversed and the execution application should be dismissed with costs.