1. This appeal arises out of an application for the execution of a mortgage-decree and is from the order of the Subordinate Judge of Hooghly, dated 22nd August 1921, directing that execution should proceed. The appellants are the sons and representatives of the mortgagor defendant in the suit in in which the decree was made. It will be convenient to distinguish the plaintiff in that suit as the first mortgagee and the three several puisne mortgagees who were also impleaded, as the second, third and fourth mortgagees respectively. The principal respondent, Banku Behari Chattopadhya, is the fourth mortgagee, at whose instance the learned Subordinate Judge made his order and to whom I shall refer as the respondent. The other respondents are formal parties representing the other mortgagees whose claims have been satisfied.
2. The question for decision, whether the application for execution was in time, is governed by Article 183 of the Schedule to the Limitation Act of 1908. The material faots are as follows:
3. Apparently, two properties had been mortgaged to the first mortgagee and one of these and thirty-two others to the second martgagee and again to the third mortgagee, while all thirty-four properties had been mortgaged to the respondent together with certain mortgage-rights belonging to the mortgagor. A doubt was suggested whether the respondent's security did not also comprise one or two additional properties but the point is of little importance.
4. The mortgage-suit was instituted on the Original Side of the High Court in 1901. On the 27th August 1902, a decree was made therein. The decree is in common form and its scheme is quite simple; but for purposes which will appear, I will state its substance. It was referred to the Registrar to ascertain and certify the amounts due on foot of each of the four mortgages. The usual period of six months was to be allowed for redemption computed from the date on which the Registrar's certificate should be confirmed and countersigned by a Judge. Provision is then made, in case the mortgagor should default in paying the certified sums within the period of grace, for the calculation of the aggregate amount payable in respect of each of the mortgages. In that connection the very general direction is given that, 'in the event of such default...the said several mortgaged premises be sold with the approbation of the said Registrar to the best purchaser or purchasers that can be got for the same, provided that the said Registrar shall consider that a sufficient sum has been offered.' The sale proceeds of the two properties were to be carried to a separate account bearing the name of the first mortgagee, the sale proceeds of the thirty-two properties to another account bearing the names of the second and third mortgagees and the sale proceeds of the properties exclusively mortgaged to the respondent to a third account bearing his name. Then follow directions as to the application of the sale proceeds under which any balance remaining after the first, second and third mortgagees had been satisfied were to be added to the sale prooeeds of the properties exclusively mortgaged to the respondent and applied in satisfaction of his dues. In conclusion, the right to a personal remedy against the mortgagor is conferred on each mortgagee in case his security should prove insufficient.
5. The Registrar, having taken the necessary accounts, brought in his certificate in due course and it was countersigned by a Judge on the 3rd September 1903. The certificate states that there would be due to the respondent on the 2nd March 1904, the sum of Rs. 78,239-6-3. It is common ground that on the same date, apparently by private treaty, the mortgagor sold to the respondent the mortgage-rights included in his secutity, it being agreed that the price, Rs. 35,000, should be set off against his mortgage-debt.
6. Nothing further seems to have been done by the mortgagor in the way of payment and, on the 4th February 1905, an order absolute for sale was made, the terms of which have not been printed or placed before us. In August 1905, the two properties mortgaged to the first mortgagee were sold and hewas fully paid off, a balance being left over which, presumably, went to the second mortgagee.
7. No further steps were taken till 1917 when, doubtless at the instance of the second and third mortgagees, or one or the other of them, it is not suggested that the respondent moved in the matter--twenty-eight other properties were sold. The proceeds were only sufficient to satisfy the second and third mortgagees and there was no balance over.
8. In April 1919, the mortgagor died and in the following month the respondent, who had done nothing since his purchase of the mortgage-rights in 1903, applied to the High Court, praying that the mortgagor's widow and his two sons, the present appellants, be substituted on the record in his place; that satisfaction of the decree in his favour be entered to the extent of Rs. 35,000; that he be at liberty to execute the decree for the sum of Rs. 82,725-11-3, being the balance of the principal and interest calculated up to the 22nd May 1919, the date of the application, and that the respondent having been credibly informed that there were no assets available for the satisfaction of the decree within the original jurisdiction but that there were assets available in the Hooghly Distriot, the decree be transmitted to the Hooghly Court for execution in respect of the balance claimed.
9. No notice of this application was given to the widow or the appellants, nor does the law require that in such cases such notice should be given. On the 27th June 1919, an order was made signed by the Registrar, but not by a Judge, under which the respondent was to be at liberty to execute the decree against the widow and sons, and a copy of the decree, together with a copy of the Registrar's certificate counter-signed on the 3rd September 1903, and 'a certificate of partial satisfaction to the extent of Rs. 35,000' was to be transmitted to the Hooghly Court for execution.
10. There was some delay in preparing the latter certificate. The document is dated 27th July 1920, and it certifies under the signature of a Judge, that satisfaction of the sum of Rs. 82,725-11-3 'has not been obtained within the local limits of the jurisdiction of this Court and that no order has been made by this Court for execution of the said decree.'
11. The decree having been transmitted to the Hooghly Court, the respondent, on the 4th July 1920, filed in that Court a formal application for execution in the prescribed tabular form. Execution was sought by the attachment and sale of six properties which admittedly were not properties comprised within the respondent's security. The respondent, therefore, was, and is, relying on his personal remedy against the mortgagor or against assets of the mortgagor in the hands of his representatives.
12. Notice of this application having been given to the widow and the appellants under Order XXI, Rule 22 of the Civil Procedure Code, they brought in their objections not to the Hooghly Court but to the High Court. The objections are stated in a petition dated 26th February 1921, which asserts inter alia that the mortgagor had left no assets in the Hooghly district, or any that had come to the petitioners' hands; that all the properties comprised in the respondent's security had not been sold; that his widow was not one of the mortgagor's legal representatives, and that execution was barred by the law of limitation.
13. The petition came before Pearson, J., on the 8th March 1921, and a consent order was made in terms which were subsequently reduced to writing. The order as drawn up bears date the 22nd April 1921, and, as it seems to mo, its only appreciable effect was to amend the order of 27th June 1919, the order for the transmission of the decree by striking out the name of the mortgagor's widow. I shall come a little later to my reasons for regarding the other amendments made as immaterial.
14. I have now stated the facts to which Article 183 of the Limitation Act has to be applied. Under that Article the period of limitation for an application 'to enforce a judgment, decree or order of any Court established by Royal Charter in the exercise of its ordinary Original Civil jurisdiction' is twelve years running from 'the time when a present right to enforce the judgment, decree or order accrues to some person capable of releasing the right.' Under the proviso to the Article, 'when the judgment, decree or order has been revived,' the twelve years are to be computed from the date of such revivor. I need not read the whole of the proviso because the respondent does not set up any payment or acknowledgment by the mortgagor within any period now material.
15. If, then, on the 4th February 1905, when the order absolute for sale was made, a present right accrued to the respondent to enforce the decree of 27th August 1902, and he did nothing which can be construed as an application for the enforcement of the decree until he applied to the High Court in 1919 for the transmission of the decree to Hooghly, he is clearly out of time, unless he can show that, within the twelve years before he so applied, something was done or some order was made which operated to revive the decree in his favour. The learned Subordinate Judge accepted the respondent's contention that the order of 27th June 1919, coupled with the consent order of April 1921, and as amended thereby, constituted a revivor. That view, as it appears to me, entirely misconceives the nature of the consent order and the effect of the amendments made. As I regard the matter, the parties or their legal advisers recognised when they came before Pearson, J., that what I may call the substantial objections of the appellants to the execution of the decree fell to be decided not by the learned Judge but by the Hooghly Court to which the decree had been transmitted. The agreement arrived at related merely is the form of the order for the transmission of the decree and not to its substance. When the original order, made without notice to the appellants, gave liberty to the respondent to execute the deoree against them, such liberty was merely a liberty to the respondent to proceed in execution subject to all just exceptions on the part of the appellants and it would, perhaps, have obviated misunderstanding if some such words had been introduced.
16. The amendments in no way altered the meaning of the original order in this respect. The widow's name was struck out because every one was agreed that the mortgagor was fully represented by his sons and that a mistake had been made in including the widow as legal representative. The amendment in no way affected the rights of the respondent as against the appellants, though the result might have been to drive the respondent to separate proceedings against the widow, if any, of the mortgaged properties not already sold had found its way into her possession.
17. Then, again, when liberty was given in the amended order to execute the decree against the appellants 'to the extent of the property of the said Sarat Chundra Dutt, the mortgagor, which has come to their hands and has not been duly disposed of,' these added words were clearly intended not to give the respondent any right which he did not otherwise possess but to protect the appellants. The words are taken from Section 50 of the Civil Procedure Code by which the Court of Execution and the respondent would have been bound, whether the words were in the order or not. Their insertion, therefore, made no difference one way or the other.
18. If further illustration be needed of the kind of thing the parties were thinking about, it will be found in the alteration of the words of the original order imputing that there were, in fact, assets available in the Hooghly District into words imputing that the respondent alleged that there were such assets. Obviously, the appellants were anxious that nothing in the order for the transmission of the decree should, prejudice them when they brought their substantial objections before the Hooghly Court for decision. The fact that the amendments introduced were misunderstood in that Court shows that there is a danger in being too meticulous in matters of mere form. In my opinion, however, the further consideration that the consent order left intact the certificate of the 13th July 1920, with the statement therein that no order had been made by the High Court for execution puts the true effect of the amendments beyond all doubt or dispute. The order of the 27th June remained after amendment, as it was before amendment, a mere order for the transmission of the decree to the Hooghly Court. Apart from the effect of removing the widow's name, the order decided nothing of any materiality as to the rights of the parties.
19. The decision of the Full Bench in Chutterput Singh v. Salt Sumari Mal 36 Ind. Cas. 602 : 43 C. 903 : 23 C.L.J. 645 : 20 C.W.N. 889, is clear authority for the proposition that such an order does not constitute a revivor. That was a strong decision because there, in accordance with the practice which then prevailed, notice of the decree-holder's application for the transmission of his decree to another Court had been given to the judgment-debtor. The practice has since been changed (sec notes to Chapter XVII, Rule 1, p. 253 of Mr. Hechle's rules and. Orders of the Original Side). The point is, that Section 39 of the Code does not require notice to be given to the judgment-debtor before a decree is transmitted to another Court; while Order XXI, Rule 10 expressly provides that if the decree has been transmitted to another Court, the application for execution shall be made to that Court and in cases where notice under Order XXI, Rule 22 has to be given that Rule provides that the notice shall be issued by the Court executing the decree. Under the scheme of the Code, the Court transmitting a decree is not the Court to decide objections on the part of the judgment-debtor that the decree is incapable of execution for that executionis barred by limitation. Such objections should be taken before and heard and determined by the Court to which the decree is transmitted as the Court of Execution. Orders of transmission are treated as quasi-administrative orders and on the Original Side are made by the Registrar who is vested with jurisdiction to decide such objections. But if the Code be followed, the nature of an order of this kind should be the same whether it is made by an officer of the Court or by a Judge.
20. In the present case the order of 27th June 1919, was, as usual, made by the Registrar and if, as the result of the proceedings before Pearson, J., the order in its amended form was adopted by the learned Judge that in no way affected the character of the order as a mere order transmitting the decree to the Hooghly Court. The learned Judge was, no doubt, entitled under Section 50 of the Code to decide who were the proper representatives of the deceased judgment-debtor, though I do not say whether or not the Hooghly Court had, under Order XXI, Rule 22, a concurrent jurisdiction in this respect. The point does not arise because this question of parties has been finally settled by agreement.
21. In my opinion, therefore, the order of 27th June 1919, whether in its original or in its amended form, did not amount to an order of revivor. It does not fulfil the test laid down by Sir Ashutosh Mookerjee in an earlier case and adopted by the learned Chief Justice in the Full Bench case. The order did not decide 'that the decree is still capable of execution and the decree-holder is entitled to enforce it.'
22. I have said enough to show that, in my view, the suggestion of the learned Counsel for the respondent that by agreeing to the amendment of the order of 27th June, the appellants 'waived' this objection to the execution of the decree is a complete travesty of what occurred before Pearson, J. Assuming that an objection on the ground of limitation can be waived, neither the learned Judge nor any body else at the time could have attributed any such effect to the consent order.
23. The conclusion of the learned Subordinate Judge that the application for execution was in time cannot be supported on the grounds on which he put it.
24. I have still, however, to deal with certain contentions which were raised for the first time in the appeal.
25. It was contended that, inasmuch as the respondent is a puisne mortgagee, time did not begin to run against him from the date of the decree but from 1917 when the decree was executed by mortgagees whose interests were prior to his own. In the alternative, it was suggested that if time ran against him from the date of tne decree or the date of the order absolute, the orders for execution which must have been made in 1905 at the instance of the first mortgagee and in 1917 at the instance of the second and third mortgagees were orders reviving the decree to the benefit of which he is entitled.
26. As it appears to me, neither of these contentions can be accepted. Upon the terms of the decree of 1902, the substance of which I have already set out, the respondent had as much right to enforce it as any of the other mortgagee-decree-holders. It is immaterial whether the decree became enforceable on the date it bears or on the 4th February 1905 when the order absolute was made. I can see no reason why, after the latter date at any rate, the respondent could not have applied to the Court for the execution of the decree. If he might have so applied, then, in the language of Article 183, a present right accrued to him on that date (if not before) to enforce the decree, a right which he was capable of releasing. It may be that any of the prior mortgagees who desired it might have obtained the carriage of the proceedings but that does not affect the respondent's right to apply for execution. It is absurd to suppose that if none of the prior mortgagees had desired to take any steps, the respondent would have had to fold his hands and do nothing. Nor have the directions in the decree as to the application of the proceeds of execution any bearing on the point. Any costs the respondent might have incurred in executing the decree would have been a first charge on those proceeds.
27. As to the execution in 1905 and 1917, that in 1905 cannot in any case help the respondent who took no steps till 1919. But, wholly apart from any question of time, why rshould an order operating as a revivor in favour of one of the mortgagee-decree-holders be of avail to any of the others? In substance, as against the mortgagor, all the mortgagees were plaintiffs. For convenience, their several claims were tried in one suit and were dealt with in one decree. But their interests are in no sense joint; the subordination of the fights of each puisne mortgagee to those of the mortgagee or mortgagees prior to him does not denote any community of interest. The fallacy of the argument would be apparent if it were suggested that an acknowledgment or payment to one mortgagee operated as an acknowledgment or payment to the others. For the present purpose an order amounting to a revivor and an acknowledgment or payment belong to the same category.
28. For the reasons indicated, I am of opinion that the respondent's application for execution was out of time and should have been dismissed.
29. The learned Subordinate Judge dealt with another objection on the part of the appellants that the respondent was not entitled to proceed against assets of the mortgagor not forming a part of his security till be had exhausted his demands against the properties mortgaged. Apparently, there were four properties mortgaged to the respondent which have not been sold in execution of the decree. The learned Judge refused to entertain this objection but his reasons are here also open to criticism. His conclusion depends to some extent at any rate on his view, which I hold to be mistaken, of the consent order of 1921. The result at which I have already arrived makes it un-neeessary to pursue this point further.
30. I will only add that, if the respondent had applied for execution during the mortgagors' lifetime instead of waiting, as he did, till the mortgagor died, information might have been available as to the four properties and possibly as to other matters now concealed from us.
31. In my opinion this appeal should be allowed with costs here and below--hearing fee in this Court 10 gold mohurs.