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Hemendra Mohan Khashnabis Vs. Noresh Chandra Bhattacharjee and ors. - Court Judgment

LegalCrystal Citation
Decided On
Reported in62Ind.Cas.418
AppellantHemendra Mohan Khashnabis
RespondentNoresh Chandra Bhattacharjee and ors.
Cases ReferredPrannath Roy Chowdhury v. Rookea Begum
civil procedure code (act v of 1908), order xxxiv, rules 4, 5(2) - mortgage--preliminary decree--temporary suspension of mortgagee's right to apply for decree absolute--limitation. - .....59 : 12 c.w.n. 326 : 3 m.l.t. 90 (p.c.), where the question arose as to the applicability of a rule of limitation, the decision of this court was ultimately approved by the judicial committee; nrityamoni dassi v. lakhan chunder sen 33 ind. cas. 452 : 43 c. 630 : 20 c.w.n. 522 : 30 m.l.j. 529 : (1916) 1 m.w.n. 332 : 3 l.w. 471 : 18 bom. l.r. 418 : 24 c.l.j. 1 : 20 m.l.t. 10 (p.c.). we may point out that the doctrine in question has been repeatedly applied by the judicial committee. see for instance the cases of ranee sarno moyee v. shooshee mokhee burmonia 12 m.i.a. 244 : 11 w.r. 5 (p.c.) : 2 b.l.r. 10 (p.c.) : 2 suth. p.c.j. 173 : 20 e.r. 831 : 2 sar. p.c.j. 424; prannath roy chowdhury v. rookea begum 7 m.i.a. 323 : 4 w.r. 37 (p.c.) : 19 e.r. 331 : 1 suth. p.c.j. 367 : 1 sar. p.c.j......

Asutosh Mookerjee, Actg., C.J.

1. This is an appeal by the plaintiff from an order in a mortgage suit. The District Judge has dismissed, as barred by limitation,an application mads by the plaintiff under sub Rule 2 of Rule 5 of Order XXXIV of the Civil Procedure Code. The plaintiff was the third mortgagee, and on the 31st January 1911 obtained a preliminary decree under Rule 4. That decree fixed the 31st July 1911 as the last date for payment of the judgment debt by the mortgagor. The payment was not made. The present application was thereafter made on the 2nd October 1915. the respondent, who is the second mortgagee, objected to the application on the ground of limitation. The Court of first instance overruled this contention. Upon appeal, the District Judge has come to a different conclusion.

2. We shall assume for our present purpose that Article (181) of the Schedule to the Limitation Act applies to this case, and that consequently the application should have been made within three years from the 31st July 1911. The plaintiff contends, however, that his right to make the application was suspended temporarily by reason of events beyond his control.

3. It appears that the 2nd mortgagee instituted a suit to enforce his security on the 12th April 1910. That litigation was ultimately brought up to this Court and a decree was made in favour of the second mortgagee on the basis of a judgment delivered on the 10th March 1914. In that case, this Court expressed the opinion that the third mortgagee could not sell the property which was common to the two mortgages before he hid paid up the second mortgagee. It is not necessary for us to decide the question, whether this expression of opinion was or was not wall founded on principle: because, whether right or wrong, the remit to the parties is identical.

4. The third mortgages now contends that he was misled by this order and could not mike the application under Rule 5, Sub-rule 2, of Order XXXIV, till the second mortgagee had been redeemed. A payment was made by him to the second mortgagee on the 22nd May 1915. There was a dispute as to whether the entire amount due had been paid, and it was not till the 7th July 1917 that the balance claimed by the second mortgagee was paid by the third mortgagee under protest. It is thus plain that the third mortgagee could not make an application to have his decree made absolute between the 10th March 1914 and the 22nd May 1915. It may also be pointed out that the sum now due to him could not have been determined till the sum payable to the second mortgagee for redemption had been settled. In these circumstances, we are of opinion that his right to apply for order absolute was temporarily suspended and was not revived till the 22nd May 1915. The principle applicable in contingencies of this character was expounded by Lord Eldon in Pulteney v. Warren (1801) 6 Ves. 73 at p. 92 : 31 E.R. 944 : 5 R.R 226: 'If there be a principle upon which Courts of Justice ought to act without scruple, it is this; to relieve parties against that injustice occasioned by its own acts or oversights at the instance of the party, against whom the relief is sought. That proposition is broadly laid down in some of the cases,' This view was subsequently approved by the House of Lords in Mast India Company v. Campion (1837) 11 Blig. (N.S.) 158 : 4 Clause & F. 616 : 7 E.R. 234. These cases were followed by this Court in Lakhan Chunder Sen v. Madhusudan Sen 35 C. 209 at p. 218 : 7 C.L.J. 59 : 12 C.W.N. 326 : 3 M.L.T. 90 (P.C.), where the question arose as to the applicability of a Rule of limitation, The decision of this Court was ultimately approved by the Judicial Committee; Nrityamoni Dassi v. Lakhan Chunder Sen 33 Ind. Cas. 452 : 43 C. 630 : 20 C.W.N. 522 : 30 M.L.J. 529 : (1916) 1 M.W.N. 332 : 3 L.W. 471 : 18 Bom. L.R. 418 : 24 C.L.J. 1 : 20 M.L.T. 10 (P.C.). We may point out that the doctrine in question has been repeatedly applied by the Judicial Committee. See for instance the cases of Ranee Sarno Moyee v. Shooshee Mokhee Burmonia 12 M.I.A. 244 : 11 W.R. 5 (P.C.) : 2 B.L.R. 10 (P.C.) : 2 Suth. P.C.J. 173 : 20 E.R. 831 : 2 Sar. P.C.J. 424; Prannath Roy Chowdhury v. Rookea Begum 7 M.I.A. 323 : 4 W.R. 37 (P.C.) : 19 E.R. 331 : 1 Suth. P.C.J. 367 : 1 Sar. P.C.J. 692. In the case before us, we are of opinion that the view taken by the Court of first instance was correct and its order should not have been reversed by the District Judge.

5. The result is that this appeal is allowed, the decree of the District Judge set aside and that of the Court of first instance restored with costs throughout,

Ernest Fletcher, J.

6. I agree.

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