1. The plaintiff, obtained a decree against the defendant No. 1 personally, with a declaration of a lien to the amount of the debt on the mortgaged property. In executing that decree he was opposed by the defendants, Nos. 2 and 3, who had purchased, before the institution of this suit, in execution of another mortgage-decree obtained on an unregistered bond, under which this very property was mortgaged. Their objection was allowed, and the plaintiff has, accordingly, brought the present suit to establish his right as against the defendants Nos. 2 and 3. The date of the adverse order under Section 246 of Act VIII of 1859 is 26th July 1877, and the present suit has been brought on the 29th March 1879. The lower Courts have held, that the plaintiff 's claim is barred by limitation under Article 11, Schedule ii of the Limitation Act, XV of 1877.
2. It is contended in appeal that, inasmuch as, under the decisions of this Court in Matonginy Dossee v. Chowdhry Junmunjoy Mullick 25 W.R. 513 and Koylash Chunder Paul Chowdhry v. Preonath Roy Chowdhry I.L.R. 4 Calc. 610 it was held that, under the Limitation Act, IX of 1871, which was in force when the order of July 1877 was passed, the limitation was not that which is now enacted in Article 11 of Act XV of 1877, but a longer period, the lower Appellate Court should have applied the last paragraph of Section 2 of the Limitation Act of 1877, under which the suit would not have been barred until two years from October 1877, on which date that Act came into force. So far as I am aware, the rule laid down in the two judgments that I have already quoted has always been followed, at least on the Benches in which I have been one of the Judges; and therefore, if the Limitation Act had remained unaltered, the present suit would not have been barred. The terms of Article 11 of the present Limitation Act are clear on this point, and would prevent a suit like the present from being brought after one year from the order in the execution proceedings; but, as I have before observed, that provision would not come into force until the 1st October 1879.
3. In this view, we are of opinion that the order of the lower Appellate Court is wrong, and that the case must, therefore, be remanded in order that it may be tried on the merits.
4. The costs will abide the result.