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Amlook Chand Parrack Vs. Sarat Chunder Mukerjee - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtKolkata
Decided On
Judge
Reported in(1911)ILR38Cal913
AppellantAmlook Chand Parrack
RespondentSarat Chunder Mukerjee
Cases ReferredMadhab Mani Dasi v. Lambert
Excerpt:
mortgage - preliminary mortgage decree--application for sale of mortgaged property--limitation act (ix of 1908), schedule i, articles 181, 182 and 183. transfer of property act (iv of 1882), sections 88 and 89--civil procedure code (act v of 1908) order xxxiv, rules 4 and 5; order xli, rule 20--party, addition of. - .....that the decree on the mortgage was made so far back as the 16th december 1886, and that the present application was made in 1909. those dates have naturally prompted the respondents to raise a plea of limitation. the question that we have to decide is whether the applicant is right when he contends that he is, so far as this application goes, free from the law of limitation.4. now, the decree first provides for personal payment by the mortgagor and this is followed by a provision for the return of documents and so forth, on payment in accordance with this personal decree. then there is a provision that in default of payment there is to be a sale of the property, and it is further ordered that if the money realised by such sale shall not be sufficient for the payment in full of the.....
Judgment:

Lawrence H. Jenkins, C.J.

1. The appellant is a mortgagee, and the mortgage under which he claims is dated the 25th January 1886. On the 16th of December 1886, he obtained a decree on his mortgage by consent. On the 3rd of July 1909 he made the application out of which the present appeal arises: and, by that application,, he asks that he may be at liberty to-add Upendra Lal Bose as a party defendant to the .suit, and.that thereafter he may be at liberty to proceed to sell, pursuant to the decree made in this suit on the 16th December 1886, an undivided quarter share of the defendant Sarat Chandra Mukerjee of, and in premises No. 30 formerly No. 49, Clive Street, Calcutta, and Nos. 1, 2 and 3 Bishoo Babu's Lane, Kidderpore, and the family dwelling house at Kidderpore, and that for .the purpose of such sale all necessary directions may be given to the Registrar. Mr. U.L. Bose's position is that on the 1st December 1903, he became a purchaser of the Clive Street property, and in his affidavit he states that the is a bona fide purchaser for full market value, that he had no notice of the plaintiff's claim, that he had laid out large sums of money with borrowed funds in the improvement of the property, and that other persons besides himself have got an interest therein, and that it would be extremely hard if after the lapse of 23 years the plaintiff is allowed to assert a claim which he had given up years ago.

2. The case was heard by Mr. Justice Fletcher, the parties before him being the applicant, the mortgagee, on the one side, and on the other the mortgagor and Mr. U.L. Bose who resisted the application with success. From the adverse judgment of Mr. Justice Fletcher the present appeal has been preferred; and, I will, at the outset, deal with a point taken on behalf of Mr. U.L. Bose. His name does not appear as a respondent, and therefore, it is maintained, as against him the judgment of Mr. Justice Fletcher cannot be touched. But it appears that the appellant made every effort, he could, to make Mr. U.L. Bose a party respondent. He may not have proceeded in the most approved manner, still undoubtedly he was anxious to have Mr. U.L. Bose as a respondent. Having failed in his endeavour, because he could not persuade the Court Officers to grant the necessary process, he has applied under Order XLI, Rule 21, that Mr. U.L. Bose may be added as a respondent here. It has been suggested that the Court has not power to do that, inasmuch as the time for, appealing has elapsed; but it is for the Court in its discretion to determine in each case whether or not it will, make an order under Order XLI, Rule 20. I have indicated the circumstances under which it became necessary to make the application in this case, and I think that the appellant is entitled to ask that Mr. U.L. Bose should be made a party, and that there should be an order to that effect. Therefore, I propose to deal with this appeal on the footing of Mr. U.L. Bose. being, a respondent before us.

3. It is to be noticed that the decree on the mortgage was made so far back as the 16th December 1886, and that the present application was made in 1909. Those dates have naturally prompted the respondents to raise a plea of limitation. The question that we have to decide is whether the applicant is right when he contends that he is, so far as this application goes, free from the law of limitation.

4. Now, the decree first provides for personal payment by the mortgagor and this is followed by a provision for the return of documents and so forth, on payment in accordance with this personal decree. Then there is a provision that in default of payment there is to be a sale of the property, and it is further ordered that if the money realised by such sale shall not be sufficient for the payment in full of the sum of Rs. 25,382-8-0 with interest, that being the amount for which the personal decree was passed, then the defendant should pay to the plaintiff the amount of the deficiency together with the plaintiff's costs. The decree is in a sense peculiar, and that has led to a contention before us on the part of the respondents that it does not come within the provisions of the Transfer of Property Act in general or of Sections 88 and 89 in particular. No doubt, if those sections be read literally, that is so. On the other side, it is contended that the decree conies within the provisions of the Transfer of Property Act, and it is on that ground principally that it is contended in the light of the cases that the present application is not barred.

5. For the purpose of my judgment, I will assume that this decree is within the Transfer of Property Act, and I prefer to put it on that broad ground rather than to seek minute distinctions, though I can quite see that the decree does encourage the distinctions which have been suggested.

6. Now, if it be a decree, as the appellant before us contends, under Section 88, of the Transfer of Property Act, then no further decree was requisite. All that was required was, under Section 89, an order for sale. It is no use our looking into' expressions in the cases, for the purpose of determining this; the Act itself is clear and plain. It is provided in Section 88 that there shall be a decree for sale. Section 89 provides that if the payment contemplated by the decree, is not made, the plaintiff or the defendant, as the case may be, may apply to the Court for an order absolute for sale of the mortgaged property, and the Court shall then pass an order that such property, or a sufficient part thereof, be sold, and that the proceeds of the sale be dealt with as is mentioned in Section 88, and thereupon the defendant's rights to redeem, and the security, shall both be extinguished. Now, what is the nature of an order for sale? In Harendra Lal Roy Chowdhri v. Maharani Dasi (1901) I.L.R. 28 Calc. 557 : I.L.R. 28 I.A. 89, 97, there was a decree for sale, substantially as here, and the respondents in that case, the mortgagors, being in default, the appellants petitioned for an absolute order for sale. Lord Davey in disposing of the case, says in the course of his judgment, 'under the circumstances, it is not surprising that the respondents were not able to find the money on the stipulated day; and thereupon the present appellant presented a petition for realization of his entire decree by sale of the mortgaged properties.' He goes on to say, in describing what had been done by the learned Subordinate Judge who acceded to the application: 'The learned Subordinate Judge in the first instance gave the appellant execution for the whole amount of his decree.' So it appeared to the Privy Council in that case, that an application for an order for sale was a petition for realization by the mortgagee of his decree.

7. Now, this case falls within the provisions either of Article 183 or Article 181 of the Limitation Act; it does not fall within the provisions of Article 182. Article 183 deals with an application 'to enforce a judgment, decree or order of any Court established by Royal Charter in the exercise' of right ordinary original civil jurisdiction or an order of His Majesty in Council,' and provides a period of twelve years, from when 'a present fight to enforce the judgment decree or order accrues to some person capable of realising the right.' If this case comes within Article 183, it is free from the embarrassment of the conflicting decisions under Article 182. If, and so far as this can be regarded, in the words of Lord Davey as 'an application for realization of a decree,' it is not unfair to say that it is an application to enforce a judgment, as being either a proceeding in execution or a proceeding for judicial relief under a decree. I therefore see no reason why Article 183 should not apply. If that be so, then it follows that this application is out of time.

8. I do not propose to make more than a passing reference to the argument that has been addressed to us in relation to Article 181.

9. There have been brought to our notice numerous cases on Article 181 and Article 182 or more strictly speaking on Articles 178 and 179 of the former Limitation Act, with a view to showing that these Articles did not apply in the past to an application under Section 89 of the Transfer of Property Act, and that by parity of reasoning they could not govern applications .under the substituted provisions of Order XXXIV of the Code of Civil Procedure. One object in view when the present Code was passed was to end, as far as possible, the conflict of decisions which embarrassed the Courts, and among those conflicting decisions were those which dealt with two points: First, whether an application for an order under Section 89 of the Transfer of Property Act was an application in execution or not; and, secondly, whether, if it was not an application in execution, Article 181 constituted a bar on the ground that the application was one not contemplated by the Code of Civil Procedure. And so if is now provided that the application which follows a preliminary decree for sale, is not for an order for sale, but for a decree for sale. And with the same end in view the provisions as to mortgage suits have been removed from the Transfer of Property Act to the Civil Procedure Code, so that it is no longer possible to contend that these applications are not under the provisions of the Civil Procedure Code. I am aware that there is an opinion expressed in Madhab Mani Dasi v. Lambert (1910) I.L.R. 37 Calc. 786 : 15 C.W.N. 337, which it may be difficult to reconcile with this, but it is not a decision, for as I read the judgment in that case, the learned Judges expressly refrained from deciding the point which was a necessary preliminary to its becoming a point calling for actual decision. It could only have been a point for decision if it had been decided that the new Code applied, t But the learned Judges not only expressly refrained from deciding this, but in effect negatived the view that the case fell under the new Code, for in conformity with the terms of the application out of which the appeal arose they determined that there should be an order absolute and not a final decree for foreclosure.

10. The result is that, for the reason which I have indicated in the earlier part of my judgment, I think Mr. Justice Fletcher rightly decided that the present application was barred, and that, therefore, this appeal should be dismissed with costs: Mr. IT. L. Those is entitled to a separate set of costs.

Woodroffe, J.

11. I agree.


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