1. A share in a taluk called Bantra was mortgaged by Srinath Dutt to Khirod Chandra Mitra. The latter assigned his rights under the mortgage by way of security to Jogendra Chandra De, whose position was, therefore, that of a sub-mortgagee. After the death of Khirod Chandra, his executors brought a suit upon the mortgage in a Subordinate Judge's Court at Alipore against Srinath Dutt and certain persons called the Roys who had purchased from Srinath Dutt the equity of redemption in the mortgaged property. In that suit, a preliminary decree for sale was passed on the 20th July 1893, and the decree was made absolute on the 3rd October following. The decree has been referred to in argument as the Alipore decree.
2. Thereafter, Jogendra Chandra De brought a suit in the High Court for a declaration that Khirod Chandra's executors were trustees for him (Jogendra Chandra) in respect; of the Alipore decree and for other reliefs. The defendants in the suit included the executors, Srinath Dutt and the Roys. On the 7th December 1895, a decree was made by consent of Jogendra Chandra and the defendants executors, the other defendants, it is expressly stated, not appearing either in person or by Counsel. The decree conferred certain rights on Jogendra Chandra. Inter alia he was declared entitled to an agreed sum of Rs. 32,000 out of such amount as might be realized under the Alipore decree. Further liberty was given to him to take proceedings for the execution and realization of the Alipore decree in his own name upon his name being entered in the record of the Alipore suit as plaintiff in the place of the defendant executors. In the event of his taking such proceedings, any sum realized by him in excess of Rs. 32,000 and costs was to be made over by him to the executors.
3. The mortgaged property has been thrice sold (subject to incumbrances) for default in the payment of revenue, on the 25th September 1894, the 16th August 1895 and the 13th December 1897. At the last sale, the equity of redemption was purchased by Bhupendra Narain Dutt and others, the appellants before us, for a comparatively small sum.
4. On the death of Jogendra, on the 20th February 1896, his brother Nagendra took out a succession certificate (dated the 3rd July following) entitling him to collect the debts due to the deceased. By an order dated the 22nd December 1896, Nagendra's name was substituted for that of his brother in the High Court decree. Jogendra had left two sons and subsequently they and Nagendra purported to assign to Kumud Kamini Dasi, the wife of Srinath Dutt, the rights conferred on Jogendra by the High Court decree. This transaction was effected in the first instance by an instrument dated the 29th December 1903. A further and more formal deed was executed for the same purpose on the 19th December 1905 by an order of the High Court dated the 8th March 1906, the name of Kumud Kamini Dasi was substituted for that of Nagendra in the High Court decree.
5. During Jogendra's life-time, nothing was done to enforce the Alipore decree. After his death; his executors twice applied for execution. The first two applications were made on the 10th July 1896, and the 15th June 1899. Both were dismissed or struck off for default.
6. Meanwhile Nagendra appears, on the strength of the High Court's order of the 22nd December 1896, to have had his name entered in the Alipore decree in substitution for the names of the original plaintiffs (Jogendra's executors). The third application for execution was made by him on the 24th July 1899 (during the pendency of the second application). Notice was served, under Section 248 of the Civil Procedure Code of 1882, on the judgment-debtors on the record and a sale proclamation was issued but for some reason, on the 17th November 1899, Nagendra was required by the Court to file fresh process-fees and notice of sale. He filed the process-fees on the 23rd November and a notice of sale on the 1st December. A second sale proclamation was then issued but on the 12th February 1900, at Nagendra's own request, the sale was stayed and the case was 'removed from the file.'
7. The fourth and fifth applications for execution were also made by Nagendra, the fourth on the 19th September 1902, and the fifth on the 27th February 1905. These cases were both dismissed for default.
8. The sixth application was made by Nagendra on the 27th February 1905. Notice was served and by an order dated the 23rd March 1905, Kumud Kamini Dasi was substituted as decree-holder in place of Nagendra. Hitherto only the names of Srinath Dutt and the Roys (or their legal representatives) had remained on the record as judgment-debtors but on the same date (the 23rd March) the present appellants came in and asked for time to file their objections to the proceedings. Apparently Kumud Kamini objected to their coming in but they were directed to file their objections on the 13th May 1905. This they did but the questions raised were never decided. Kumad Kamini omitted to take same formal step and the case was struck off for default on the 18th December 1905.
9. The seventh application for execution (with which we are now concerned) was made by Kumud Kamini on the 6th July 1906. She has since died and her sons have succeeded her on the record as her successors-in-interest. They are the principal respondents in this appeal.
10. The suggestion put forward in the Court below that Kumud Kamini was a mere benamdar for her husband, Srinath Dutt, was rejected by the Subordinate Judge and has not been pressed before us. The only points now taken are the following:
(1) It is contended that the power given to Jogendra by the High Court decree to execute the Alipore decree was given to him as trustee for Khirod Chandra and that the High Court decree conferred on Jogendra no rights which were either transmissible or heritable. The appellants, it is argued, are not bound by the High Court decree because Srinath Dutt and the Roys, their predecessors in interest, were no parties to the compromise or agreement on which it was founded.
(2) It is further contended that the enforcement of the Alipore decree is barred by limitation on two grounds:
(a) under Section 230 of the Civil Procedure Code of 1832, because the application for execution, now in question, was made more than twelve years after the date of the decree and;
(b) under Article 179 of Schedule II of the Limitation Act of 1877, because a period of more than three years intervened between the third and fourth applications for execution.
11. The statement of the facts already given in some detail enables us to deal with these contentions very shortly.
12. As to the nature of the rights conferred on Jogendra by the High Court decree, we are of opinion that there is no substance in the argument for the appellants. It is entirely misleading to say that any of those rights were conferred on Jogendra merely as trustee for Khirod Chandra. As sub-mortgagee, Jogendra had interests of his own which he was at perfect liberty to safeguard in any way open to him. The rights which he obtained as mortgagee were transmissible and heritable. If it be the case that Srinath Dutt and the Roys were not parties to the High Court decree, the fact is of no importance because they were not necessary parties to the suit. The decree operated pro tanto as an assignment of the Alipore decree by Khirod Chandra to Jogendra and such an assignment might have been effected without the assistance of a Court of justice.
13. Upon the question of limitation, there are decisions of this Court which are against the appellants. It was held in Kartick Nath Pandey v. Juggernath Ram Marwari 27 C. 285 that mortgage decrees, such as the Alipore decree was, were not decrees for the payment of money within the meaning of Section 230, As to Article 179, it is true that more than three years elapsed between the date of the third application for execution and the date of the fourth application, but the payment of process-fees and the filing of a notice of sale on the 23rd November and 1st December 1899 imported a request to the Court to proceed in the matter and was equivalent, therefore, to an application to take some step-in-aid of execution within the meaning of Clause (4) of Article 179. This application was within three years of the date of the fourth application. The point appears to have been decided in the cases of Radha Prosad Singh v. Sundar Lall 9 C. 644 and Norendra Nath Pahari v. Bhupendra Narain Roy 23 C. 374 at p. 387.
14. For these reasons, we agree with the Subordinate Judge and this appeal must be dismissed with costs. (Pleader's fee five gold mohurs). The Rule is discharged, no order as to costs. Let the record be sent down without delay.