Sm. Sona Debi and Others vs Bhola Prosad Sahi and Others

Manohar Lall, J.—The question for decision in this appeal by the plaintiffs is whether their application for making the preliminary mortgage decree final is barred by limitation. The facts are these: Bhola Prosad Sahi and others, hereinafter to be referred to as the Sahis for the sake of convenience, executed a mortgage bond in favour of the appellants on 20-1-1917, and also another mortgage bond in favour of the same appellants on 21-3-1918, by which they hypothecated certain immovable properties. The Sahis had executed another mortgage bond on 2S-6-1921, in favour of the family of Ramsarisht Singh, Satnarain Singh and others, and also another mortgage bond dated 28-9-1927, in favour of the same Ramsarishth Singh and others in which some of the properties which were covered by the bonds of 1917 and 1918 in favour of the appellants were also given in security. Ramsarishth Singh and others instituted Suit No. 8 of 1933 in the Court of the second Subordinate Judge of Muzaffarpur to enforce their dues on the mortgage bonds of 1921 and 1927. The appellants were impleaded in that suit in order to enable them to redeem because the plaintiffs therein alleged that they were subrogated to the rights of the mortgagees in eight other mortgage bonds of the years 1904 to 1916, the details are given at page 42 of the paper book. Some other transferees from the Sahis and persona interested in the equity of redemption were also made parties.

The appellants instituted Suit No. 53 of 1933 in the same Court to enforce their dues on the mortgage bonds of 1917 and 1918 and made Ramsarisht Singh and others as party defendants in the action to enable them to redeem. The mortgagees of Suit No. 3 of 1933 will hereinafter be conveniently described as defendants 7 to 15, the numbers which were given to them in the plaint of mortgage suit No. 53 of 1938 (the rights of the mortgagees in the mortgage bonds of 1921 and 1927 have by an arrangement between the mortgagees become vested in defendants 7 to 15). In this suit certain other persons who were said to be interested in the equity of redemption and the transferees from the Sahis were also made parties. Defendants 7 to 15 set up in the written statement their priority to the extent that they claimed to be subrogated to the rights of the mortgagees in the eight bonds already referred to. With the consent of the parties, the learned Subordinate Judge tried these two mortgage suits together. Issue 4 in mortgage suit No. 3/33 and issue 3 in mortgage suit No. 53/33 was common to both, namely, the right of priority with respect to the bonds of 1917 and 1918 and the eight bonds of the years 1904 to 1916. The learned Subordinate Judge held that as the provisions of Section 92, T.P. Act, have a retrospective effect, the plaintiffs of suit No. 3 were entitled to be subrogated in respect of the eight mortgage bonds. But the plaintiffs of suit No. 53 were held not entitled to any legal subrogation in respect of the four mortgage bonds of the years 1906, 1907, 1908 and 1914 as there was no contract in writing registered to that effect in their favour. The two suits were disposed of by a single judgment dated 6-2-1935 in which the learned Subordinate Judge dealt with the two suits separately and ordered that separate mortgage decrees be prepared on the two mortgage bonds in each suit, and that the plaintiffs of suit No. 53 shall not have any priority for their mortgaged dues in respect of the eight mortgage bonds to which priority was declared in favour of defendants 7 to 15. As a result two separate preliminary mortgage decrees were prepared in the two suits.

The appellants being aggrieved by that portion of the finding in the judgment which gave the plaintiffs of suit No. 3 priority with respect to their eight mortgage bonds filed two separate appeals to this Court. First Appeal 189A was against the decree prepared in suit No. 3 of 1933 and First Appeal No. 189B was against the decree prepared in suit No. 53 of 1933. The Stamp Reporter pointed out at p. 49 that in the decree prepared in suit No. 53 of 1933 the finding that the plaintiffs of suit No. 53 of 1933 shall not have priority over their mortgage dues in respect of the eight mortgage bonds paid by plaintiffs of suit No. 3 of 1933 has not been inserted and, therefore, he was unable to make out how the Appeal No. 189B which arose out of the decree in Suit No. 53 of 1933 was maintainable wherein the only relief claimed was that the finding on the question of priority should be set aside when no mention of any priority was made either in the judgment or in the decree of suit No. 53. Three months later another report was submitted by the Stamp Reporter which pointed out that the mortgage decrees were not in the proper form as provided in Appendix D, Civil P.C., and that both the appeals have been valued at Rs. 1690 and contain the same set of grounds and the relief claimed was identical, namely, that the finding of the Court below on the question of priority and subrogation be modified. The Stamp Reporter further pointed out that a fixed fee of Rs. 15 only was paid in appeal No. 189A and no court-fee was paid in Appeal No. 189B. Upon a reference to a number of decisions the Stamp Reporter submitted that ad valorem court-fee of Rs. 255 was payable on the memorandum of Appeal No. 189A and as the value of the eight bonds was Rs. 3098, there was a deficit of Rs. 255 minus Rs. 15 paid already, that is, Rs. 240 with regard to the memorandum of appeal in First Appeal No. 189B. The Stamp Reporter pointed out that a mortgage decree had been given to the plaintiffs with this reservation that they have no right of priority in respect of Rs. 1690 and the plaintiffs'' relief in this appeal was for removal of that condition in respect of Rs. 1690 only. The value of the appeal was thus Rs. 1690 and the ad valorem court-fee payable thereon was Rs. 150. On 14-2-1936 a further report was submitted. It was pointed out that in First Appeal No. 189A the plaintiffs-respondents were allowed priority in respect of Rs. 3098 covered by the eight bonds, and in ground No. 4 the appellants wanted that their priority in respect of Rs. 1690 should have been allowed by the trial Court in suit No. 53. The Stamp Reporter observed that he could not understand how in First Appeal No. 189A the finding of the trial Court not allowing priority to the appellants in Appeal No. 189B arising out of a decree passed in suit No. 53 could be challenged. The reason for this objection in that report will be appreciated because of what happened in the meantime in the High Court.

On 13-1-1936 the court-fee matter regarding First Appeal No. 189A came up for consideration before the Registrar. After hearing Mr. S.N. Rai, the learned Advocate for the appellants, order No. 9 was recorded that Appeal No. 189A is allowed to be withdrawn. On the next day, the Registrar thinking that F.A. 189A may be a clerical mistake desired the appellant to re-examine and state clearly which appeal he wanted to be withdrawn and, thereafter he would call for a stamp report from the Stamp Reporter regarding the remaining appeal. On 22-1-1936 Mr. S.N. Rai stated that it was through inadvertence that he prayed for withdrawal of the Appeal No. 189A instead of Appeal No. 189B. Accordingly Appeal No. 189B was directed to be withdrawn. It will be remembered that Appeal No. 189B was against the preliminary decree in suit No. 53. The further stamp report dated 14-2-1936 referred to above was given in these circumstances. The Stamp Reporter now suggested that the grounds of appeal in the only appeal then on the file might be amended. But no amendment whatsoever was made in the grounds of appeal, that is to say, the appellants retained both the grounds with regard to the priority given for Rs. 3098 and not allowed with regard to Rs. 1690. The Stamp Reporter submitted that only the grounds taken in respect of priority covered by the eight bonds in suit No. 3 were maintainable and the grounds of claiming priority in respect of suit No. 53 were not maintainable as the subject-matter of the two decrees could not be agitated in one appeal and they might be ignored and further because the appeal in respect of suit No. 53 had been withdrawn. In these circumstances the proper court-fee payable was suggested to be Rs. 255 minus Rs. 15 and a deficit of Rs. 240 was pointed out. The deficit of Rs. 240 was paid on 30-4-1936. Some other defects having been removed the appeal was formally admitted on 19-10-1936. The Appeal No. 189A was then styled as First Appeal No. 189 of 1936 and came up for hearing before a Division Bench in which I delivered the judgment on 16-1-1939. After narrating the facts which led up to the institution of the two appeals in this Court and the withdrawal of one, I held;

The result is that today when the case was called on there is only one appeal in existence, namely, First Appeal 189 of 1936 and the other appeal which had been filed and stood withdrawn, resulted in this that the decision of the learned Subordinate Judge, which was the subject of that appeal, remains unchallenged and cannot be challenged today. Accordingly the learned Advocate for the respondents took a preliminary objection that the subject of the present appeal is hit by the principle of res judicata and must be governed by the decision on the point in suit No. 53 of 1933 which has now become final between the parties.... In our opinion this contention is sound, because if we reversed the decision of the learned Subordinate Judge on Issue 4 the result would be that there would be two contradictory decrees on the same matter covered by Issue 3 of suit No. 53 as well as Issue 4 of suit No. 3 of 1933....

Accordingly the appeal was dismissed on giving effect to the preliminary objection,

On 9-4-1940, the appellants made an application that the preliminary decree in the mortgage suit No. 53 of 1933 may be made final. Defendants 7 to 15 objected that the application was barred by limitation.

The learned Subordinate Judge by his order dated 14-5-1942 gave effect to this contention and held that the application was barred by limitation. It was contended in the alternative before the learned Subordinate Judge that Appeal No. 189B was withdrawn by the appellants on the advice received from Mr. S.N. Rai that as the issue in both the appeals was the same, and the plaintiffs had appealed from the decree in the suit instituted by the defendants, it was not necessary to prosecute the other appeal. The learned Subordinate Judge was inclined to agree that such an advice was given though this advice might have been just the other way, but he was doubtful as to the truth of the statement made by Jamuna Prasad Singh in the evidence that Pandit Shivanandan Rai on being asked whether the plaintiffs should apply for final decree was advised not to do so as that would prejudice the appeal that was still pending in the High Court. He further did not believe the statement that no application for final decree was made as a result of this advice by Pandit Shivanandan Rai, but in any case he came to the conclusion that even if such advice was also given it would not be sufficient to attract the operation of either Section 5 or Section 14, Limitation Act. Hence the appeal to this Court.

Dr. D.N. Mitter on behalf of the appellants and Mr. Lal Narain Sinha on behalf of the respondents have presented closely reasoned and able arguments in support of their respective contentions and have referred to a large number of cases.

I have perused every one of the case cited. The question is interesting and perhaps difficult, but I have clearly come to the conclusion that the decision of the learned Subordinate Judge is correct.

The facts narrated above show that the appellants had obtained a preliminary decree in their suit, but being dissatisfied they filed an appeal to this Court which they withdrew on 22-1-1936. What was there to prevent them from making an application to have the preliminary decree made final? In my opinion, there was no obstacle whatsoever. It is now well-settled that during the pendency of an appeal against a preliminary decree, the Court which passed the decree retains jurisdiction to entertain an application to make the decree final (see the cases reviewed in Sat Parkash and Another Vs. Bahal Rai and Another .) This is in accord with the judgment of their Lordships of the Judicial Committee in Juscurn Boid v. Pirthichand Lal Chaudhury AIR 1918 PC 151 where Sir Lawrence Jenkins pointed out at p. 56 that under the Indian law and procedure the original decree is not suspended by presentation of an appeal, nor is its operation interrupted where the decree on appeal is one of dismissal. It may be plausibly argued that as the plaintiffs were the appellants to this Court, they may have thought that they would be prejudiced if they made an application for making the decree final, while they were in the appeal presented to this Court challenging the correctness of the finding of the learned Subordinate Judge on the question of priority. Support for this contention is undoubtedly derived from the case in Gaur Charan v. Mohan Sabu (44) 23 Pat. 635 wherein on reviewing a large number of authorities I came to the conclusion that the right to make an application for a final decree on a mortgage decree within the meaning of Article 181, Limitation Act, 1908, accrues on the expiry of the date for payment fixed by the preliminary decree, but if the preliminary decree is appealed from then the time begins to run from the data fixed by or of the appellate decree, and further that an order for dismissal of a mortgage appeal on the ground that the memorandum of appeal was insufficiently stamped and that the deficit was not made good within the time allowed is itself a decree and, therefore, for the purposes of Article 182 of the Act the starting point of limitation in such a case is the date of dismissal. In the present case, the appellants did not pay any court-fee whatsoever on the memorandum of appeal and the question of the payment of the requisite amount of court-fee was agitated on various dates at the instance of the Stamp Reporter before the Registrar, and as I have already pointed out, the appellants withdrew the appeal on 22-1-1936 as they were not willing to pay the court-fee demanded. It must, therefore, be held that in the present case the time for making the application to make the preliminary decree in Suit No. 63 final would run from 22-1-1936. But even then the application was made on 9-4-1940, and, on the face of it, was barred by limitation.

The learned Advocate for the appellants, however, suggested that the right to make the decree final was suspended by reason of the fact that the same question was still pending decision between the parties in First Appeal 189 which was dismissed by the High Court only on 11-1-1939.

The case law on the doctrine of the suspension of the period of limitation has been So elaborately revised in a large number of cases that it is unnecessary to burden this judgment with a review of those cases over again. Reference may in particular be made to the review of the case law exhaustively by Sir Manmatha Nath Mukherji in Sarat Kamini Dasi v. Nagendra Nath Pal AIR 1926 Cal. 65 and by the Madras High Court in Prannath Roy Choudhry v. Rookea Begum (1857) 7 M.I.A. 323.

The Privy Council cases which were usually cited on these occasions and which have been cited by Dr. Mitter are: Prannath Roy Choudhry v. Rookea Begum (1857) 7 M.I.A. 323, Mt. Surno Moyee v. Shooshee Mokhee Barmonia (67) 12 M.I.A. 244, Nrityamoni Dassi v. Lakhan Chandra Sen AIR 1916 PC 96 affirming the judgment of the Calcutta High Court in Lakhan Chandra Sen v. Madhu Sudan Sen (08) 35 Cal. 209 and Baijnath Sahai v. Ramgut Singh (96) 23 I.A. 45. Besides these cases Dr. Mitter has also cited the cases in Kamaruddin Ahmad v. Jawahir Lal (05) 32 I.A. 102, Maharaja of Darbhanga v. Homeshwar Singh AIR 1921 PC 31, Lachmi Narain v. Balmakund 11 AIR 1924 PC 198 and AIR 1937 276 (Privy Council) .

On the other hand, Mr. Lal Narayau Sinha cited Hurro Pershad Roy v. Gopal Das (83) 9 I.A. 82: 3 Cal. 817, Juscurn Boid v. Pirthichand Lal Chaudhury AIR 1918 PC 151 and Rani Kuarmani Singh v. Nawab Bahadur of Murshidabad AIR 1918 PC 180.

Among the Indian cases which were cited before us, Dr. Mitter relied strongly upon the cases in Hemendra Mohan v. Dharani Nath AIR 1921 Cal. 381, Lakhan Chandra Sen v. Madhu Sudan Sen (08) 35 Cal. 209 and Pir Ammal v. Nalluswami Pillai AIR 1931 Mad. 149. In reply to this Mr. Lal Narayan Sinha relied upon the cases in Ranganatha Rao v. Rama Pandithar AIR 1923 Mad. 108, Ammathayi Ammal v. Sivarama Pillai AIR 1925 Mad. 334 , the cases in Dina Nath Saha Roy and Others Vs. Jadu Nath Biswas and Others, and Sarat Kamini Dasi v. Nagendra Nath Pal AIR 1926 Cal 65 and the Patna case in Mahadev Prasad v. Ramchandar Narain Singh AIR 1916 Pat 367. Mr. Sinha also insisted that the Courts cannot refuse to apply the period of limitation or to keep in suspension the cause of action which has accrued and that the time when it once has begun to run cannot be interrupted without a specific injunction by the Courts.

The conclusion which I draw from these cases is that in each case the Court must find out if there are any special circumstances which can suspend or modify the ordinary law of limitation as applicable to a particular case, e.g. (1) where the rights of the litigant have been fully satisfied and thereafter the decision is reversed as in Mt. Surno Moyee v. Shooshee Mokhee Barmonia (67) 12 M.I.A. 244 and Lakhan Chandra Sen v. Madhu Sudan Sen (08) 35 Cal. 209 where the decree itself is in such a form and the circumstances are such that it is incapable of execution except on the happening of certain events as in Maharaja of Darbhanga v. Homeshwar Singh AIR 1921 P.C. 31: (3) where by some provisions of an enactment the institution of the suit or the making of the application has been suspended as in Mahabir Prasad Narayan Deo v. Bhupal Ram AIR 1929 Pat. 694,:(4) where the execution of the decree has been suspended by no act or default of the decree-holder as in Kamaruddin Ahmad v. Jawahir Lal (05) 32 I.A. 102 where the rights of the parties'' have been determined by passing a preliminary decree in a partition action as in Lachmi Narain v. Balmakund AIR 1924 PC 198 and then the party takes no steps (6) where the rights of the parties to have the amount of mesne profits calculated are determined by a decree and the applicant takes no further steps as in Bhatu Ram Modi v. Fogal Ram AIR 1926 Pat. 141 or where a collateral proceeding decided in the meantime prevents the reaping of the fruits as in Hemendra Mohan v. Dharani Nath AIR 1921 Cal. 381.

Apart from these or such like circumstances the Court must look to the provisions of the Indian Limitation Act themselves like Sections 5, 14 and 15 and unhesitatingly apply them where the circumstances attract their operation.

In cases like the present the solution will depend upon finding out when the right to apply arose. It has been rightly said that in such cases the Court should liberally and not rigidly construe the meaning of the words ''right to apply'' a phrase which has been loosely used in the Indian Limitation Act (see the observations of Sesagiri Ayyar J. in Muthu Korakki Chetty v. Madar Ammal AIR 1920 Mad. 1) so that the cause of action or the right to apply is put on a date when the remedy is available to the party.

Applying these principles to the present case, I am satisfied that the appellants had the right to apply for making their decree final at any time within three years from 22-1-1936. There was no obstacle in their way: no injunction had been issued; no stay order had been given by the High Court and there was no decision arrived at in any collateral proceeding preventing them from making the application.

But it is argued with considerable force that when the question of priority as between the two mortgagees was still pending decision in the High Court, the appellants were justified in awaiting the decision in that litigation. The answer to this contention is to be found in the Division Bench case of this Court in Mahadev Prasad v. Ramchandar Narain Singh AIR 1916 Pat. 367. In that case the appellant to this Court had obtained a decree on 14-12-1903, the execution whereof was started sometime in 1906, but was struck off on 15th November of that year. One day before on 14th November, the judgment-debtor brought a suit to have the decree set aside on the ground of fraud, but the suit was dismissed on 8-6-1908. The decree-holder then applied that his execution may be restored to the pending file, but the application was dismissed on 29-8-1908, and another application for execution made on 23-9-1908 was also dismissed after an order had been passed on 16-1-1909 to bring on the record the names of the representatives of the deceased party. This application was actually struck off on 8-2-1909. In the meantime the judgment-debtor had appealed to the High Court against the order dismissing his suit, and the appeal was allowed on 8-7-1910, and the case was remanded to the Subordinate Judge who again dismissed the suit on 8-5-1912. The decree-holder then presented an application for execution on 5-3-1914 and claimed to deduct the period between 8-4-1909 the date upon which he received notice of the appeal having been filed in the High Court by the judgment-debtor and 8-5-1912, the date of the dismissal of the suit by the Subordinate Judge. Chamier C.J. who delivered the judgment of the Bench refused to allow to the decree-holder a deduction of this time in these words:

The decree-holder suggests that it was reasonable for him to await the decision in the judgment-debtor''s suit before proceeding further with the execution of the decree. This even if true, would not justify the Court in disregarding the law of limitation. Section 15 of the present Limitation Act applies to applications for the execution of a decree and it provides that ''in computing the period of limitation prescribed for any suit or application for the, execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn, shall be excluded.'' In the present case the execution of the decree was not stayed by injunction or order. It was conceded that when the judgment-debtor appealed to the High Court in November 1908, he did not obtain an order from the High Court staying further execution of the decree, Nor is it suggested that the decree-holder was prevented either by force or by fraud from executing his decree between February 1909 and March 1914, when the present application was made.

The learned Chief Justice then distinguished the case in Rameshwar Singh v. Rateshwar Singh (13) 18 I.C. 841 which was cited in argument and pointed out that in the case before him the decree-holder has been remiss as no reason can be discovered why he could not take any action to execute his decree during the five years after 8-2-1909.

It was argued by Dr. Mitter that pendency of litigation has been held to be a good and sufficient cause to suspend the period of limitation, and he relied upon the case in Rajah Enayet Hossein v. Ahmed Reza (1857) 7 M.I.A. 238: 1 Sar. 633 (P.C.) and Prannath Roy Choudhry v. Rookea Begum (1857) 7 M.I.A. 323. But it will be found that those cases attracted the provisions of Section 14, Bengal Regulation of Limitation Act, where a good and sufficient cause was a circumstance which could be taken into consideration for not applying the commencement of the bar of limitation. Those words have now been removed from Limitation Act which is now under consideration. The case in Ammathayi Ammal v. Sivarama Pillai AIR 1925 Mad. 334 is an illustration of this view although it is true that in that case the party who was litigating was a third person who was seeking a declaration that the hypotheca did not belong to the mortgagor at all. It must also be remembered in this case that although the two appeals were linked together the final decree which would be passed in suit No. 53 would be for a sum entirely different from the amount for which the final decree would be passed in Suit No. 3 and moreover the amount for which priority was claimed in suit No. 53 was for Rs. 1690 and the objection to the priority decreed in Suit No. 3 was for a different sum of Rs. 3098. Not only the amounts would be different, but the properties which would be sold under the two decrees would be different. The mere fact that the right of priority to some extent was common in both the cases is no ground whatsoever for suspending the period of limitation. This argument that the pendency of a collateral litigation suspends the period of limitation was noticed by their Lordships of the Judicial Committee in AIR 1932 165 (Privy Council) . Sir Dinshah Mullah in delivering the judgment observed at p. 288 thus:

It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage.

The observations of Jackson J. in Tripura Sundaramma v. Abdul Kadir AIR 1933 Mad. 418 are to the same effect.

With regard to the case in Hemendra Mohan v. Dharani Nath AIR 1921 Cal. 381 strongly relied upon by Dr. Mitter it is enough to state that the facts therein as can be inferred from the report were entirely different. I respectfully adopt the distinction pointed out about this case at p. 108 in Ranganatha Rao v. Rama Pandithar AIR 1923 Mad. 108:

The facts as stated in the report are not quite intelligible but it is clear in that case the expression of opinion in the suit of the second mortgagee was for some reason considered to have modified the decree in the suit of the then mortgagee. The facts are intelligible only on such a footing.

Dr. Mitter also relied very strongly upon the Privy Council case in Mt. Surno Moyee v. Shooshee Mokhee Barmonia (67) 12 M.I.A. 244. But that case dealt with a special situation as was explained by Sir Robert P. Collier when delivering the judgment of the Board in Hurro Pershad Roy v. Gopal Das (83) 9 I.A. 82: 3 Cal. 817 (PC):

The effect of that case may be very shortly stated. The Zamindar brought a certain putni talook to sale and sold it to a purchaser who was put in possession of it, and out of the purchase-money the arrears of rent were paid. Subsequently this sale was set aside for irregularity; the zamindar had to refund the purchase-money received by her, and the patnidar who succeeded in setting it aside obtained also the mesne profits for the time during which he was ousted. Under those circumstances this Committee, whose judgment was delivered by Sir James Colvile, observed: ''it is clear that until the sale had been finally set aside, she''--that is, the plaintiff--''was in the position of a person whose claim had been satisfied, and that her suit might have been successfully met by a plea to that effect.'' In other words, the effect of the judgment of this Board is, that under the peculiar circumstances, the putnidar having recovered possession together with mesne profits, it was equitable that he should pay the amount of rent which was in arrear; but that amount of rent did not accrue until the sale of the putni had been set aside, and therefore, until that time the statute could not run. This examination of that case shews it altogether to differ from the present. Here there was no period of time in which the rent could not have been recovered. There was no period of time in which, therefore, the statute might not have run.

Applying these weighty observations to the facts of the present case, here there was no period of time after 22-1-1936, in which an application for final decree would not have been made, that is to say, there was no period of time in which, therefore, the statute might not have run. It will be also observed that the equitable consideration in Mt. Surno Moyee v. Shooshee Mokhee Barmonia (67) 12 M.I.A. 244 was applied not to extend the period of limitation but to hold that after the reversal of the sale it was considered equitable that the arrears of rent which were satisfied as a reason of the sale at one time should now be paid, and, therefore, that was taken to be the starting point of a new obligation.

It was argued that until the appeal which was then pending in this Court was decided, it would be impossible to know what was the amount which was payable to the respondents so that the appellants may redeem them if they liked. The answer to this contention is twofold. Firstly, as the result of the withdrawal of their own appeal, the amount which was payable to defendants 7 to 15 could be ascertained, and, secondly, that the effect of the final decree for sale in Suit No. 53 would have been that the mortgaged properties would be sold and the sale proceeds would be applied firstly to satisfy the prior claim of defendants 7 to 15 to the extent of Rs. 3098 for the eight mortgage bonds to which they had been subrogated and then the amount would go to pay up the decree of the appellants on their mortgage bonds, and the balance, if any, would then go to pay the remaining portion of the decree of defendants 7 to 15 on their mortgage bonds in suit. If in the meantime the appellants succeeded in the High Court, the amount which would be kept for payment to defendants 7 to 15 would be made available to the present appellants at once or by way of restitution if the amount had been withdrawn. The argument that their own claim to priority to the extent of Rs. 1690 was still sub judice is not sound as I have already shown that they had withdrawn their appeal in this Court and the only relief claimed in the remaining appeal was that no priority should have been given to defendants 7 to 15.

Having anxiously considered the matter, I am unable to discover any equitable ground which can emerge in this case upon which I can hold that the right to apply for a final decree did not accrue to these appellants on 22-1-1936.

We were also asked to consider that the form of the decree as provided by Order 34, Rule 4(4), Civil P.C. and as is given at pp. 1076-1078 of Mulla''s CPC itself provides for a determination of the rights of the mortgagees inter se so that they may redeem each other if they so liked. It was argued that till these rights were finally determined by High Court the appellants were right in awaiting the decision by this Court. But this argument has been dealt with by me just now above when I pointed out that there could be no difficulty in having a final decree passed in the appellants'' suit.

Dr. Mitter drew our attention to the observations of Lord Hobhouse in Mt. Bassu Kuar v. Dhum Singh (88) 15 I.A. 211:

It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not. And it would be a lamentable state of the law if it were found that a debtor, who for years has been insisting that his creditor shall take payment in a particular mode, can, when it is decided that he cannot enforce that mode, turn round and say that the lapse of time has relieved him from paying at all.

But this principle has no application to the present case where it is impossible to hold that a new obligation was imposed upon defendants 7 to 15 or that a new right had accrued to the appellants by the dismissal of F.A. 189. In Mt. Bassu Kuar v. Dhum Singh (88) 15 I.A. 211 it would be observed that it was common ground between both the disputants that there was a contract made between them and that among its terms were the sale of the villages for Rs. 65,000, the retention by Dhum Singh of his debt as part payment, and the payment by Barumal of the balance. It was only when the High Court gave its decree in 1884 that a new state of things accrued and a new obligation was imposed on Dhum Singh so that he became bound to pay that which he had already retained in payment for his rent. Here the rights of the parties were determined by the Court though adversely in some respects to the appellants in Suit No. 53, and their appeal to this Court was withdrawn by them--those rights have never been and could never have been altered in the least so as to debar them from applying for making the decree final in their suit.

Dr. Mitter in arguing the appeal stressed the fact that it was most inequitable that the appellants should be deprived of their rights to have their decree made final merely because they honestly and reasonably thought that their rights could only be finally determined after the litigation which was pending at their instance in the High Court came to end. It is enough to refer to AIR 1932 165 (Privy Council) when their Lordships observed at p. 288:

The fixation of periods of limitation must always be to some extent arbitrary and may frequently result in hardship. But in construing such provisions equitable consideration are out of place and the true grammatical meaning of the words is, their Lordships think, the only safe guide.

See also the cases in Hurro Pershad Roy v. Gopal Das (83) 9 I.A. 82: 3 Cal. 817 and Juscurn Boid v. Pirthichand Lal Chaudhury AIR 1918 PC 151 noticed above where equitable considerations though present were not applied. To the same effect is the decision in AIR 1935 85 (Privy Council) and Tripura Sundaramma v. Abdul Kadir AIR 1933 Mad. 418. This contention must, therefore, be overruled.

It was lastly contended by Dr. Mitter that the appellants believed in the honest advice given by Mr. Shivanandan Rai and, therefore, they are entitled to relief on the analogy of Section 14, Limitation Act applied by the Privy Council in AIR 1937 276 (Privy Council) . In my opinion this contention also has no force. In the first place I agree with the learned Subordinate Judge that Mr. Shivanandan Rai could not have given the advice that no application for final decree should be made. It is most unlikely that an advocate of the experience of the late Mr. Shivanandan Rai would have tendered such an advice. But even if such an advice was tendered, this cannot justify the Court in refusing to apply the provisions of the Limitation Act. The case relied upon was a case in which the provisions of Section 5, Limitation Act were held applicable to the case of an appeal filed beyond time. In deciding whether the applicant had made out sufficient cause for the delay their Lordships took into consideration the circumstances which would have made Section 14 applicable. The same situation does not arise in the present case where the question is not whether the appeal is beyond time and the delay should be condoned, but the question is whether the applicants have come to seek a relief beyond three years of the date when the right to apply accrued to them. This case, therefore, does not help the appellants.

The result is that the appellants have-only to thank themselves for the situation in which they now find themselves, and I must dismiss their appeal. But having regard to the fact that the appellants are now losing a portion of the money which they have been found to have advanced to the mortgagors and to that extent defendants 7 t60o 15 will derive an advantage, I would direct that each party will bear his own costs of this litigation in this Court and" in the Court below.

Imam J

I agree.