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Nagendra Nath Dey And Another v. Suresh Chandra Dey And Others
Factual and Procedural Background
This appeal concerns the construction of Article 182, Schedule 1, Limitation Act, 1908, arising from a long-standing partition suit involving jointly held properties. A receiver was appointed with authority to raise a loan secured by mortgage on the properties, and in 1894, the receiver executed a mortgage in favor of certain cosharers, including the appellants Nagendra Nath Dey and Pulin Behari Dey, and respondents Madan Mohan and his son.
In 1907, after partition shares were allotted and the receiver discharged, Madan Mohan and his son sued to enforce the mortgage, claiming the appellants had assigned their interest to him. The Subordinate Judge upheld this claim and passed a preliminary mortgage decree. On appeal, a compromise was reached and a new preliminary decree was passed in 1913, disregarding Madan Mohan's claim and recognizing the appellants as mortgage-creditors.
The appellants then withdrew a deposit paid under the earlier decree despite opposition from Madan Mohan. After some judgment-debtors paid their dues, Madan Mohan applied in 1916 for a final mortgage decree and again asserted the assignment claim, which was disallowed by the Subordinate Judge in 1920. A final decree was passed for sale of the mortgaged properties belonging to the remaining judgment-debtors, declaring the appellants entitled to payment out of the sale proceeds.
Madan Mohan filed an appeal to the High Court in 1920, purporting to appeal against the Subordinate Judge’s order, despite irregularities in form and stamp duty. The appeal was admitted, heard, and dismissed on grounds of irregularity and merits in 1922. The appellants then applied for execution by sale in 1923, which was opposed by certain judgment-debtors on limitation grounds under Article 189 of the Limitation Act.
Legal Issues Presented
- Whether Madan Mohan's appeal to the High Court was an appeal within the meaning of Clause 2 of Article 189 of the Limitation Act, thereby affecting the limitation period for execution of the decree.
- Whether the appeal must be regular in form and include all parties affected (specifically the judgment-debtors) to extend the limitation period.
- Whether the entire decree must be imperilled in the appeal to affect the limitation period under Article 189.
Arguments of the Parties
Respondents' Arguments
- The 1920 application by Madan Mohan was irregular and thus not a valid appeal but an abortive attempt.
- An appeal to extend limitation must include all affected parties, particularly the judgment-debtors.
- Only an appeal that imperils the whole decree can extend the limitation period.
Appellants' Arguments
- The 1920 appeal, though irregular, was properly admitted and heard, constituting a valid appeal for limitation purposes.
- No requirement exists that all affected parties must be part of the appeal to extend limitation under Article 189.
- The plain language of Article 189 must be followed without reading in qualifications regarding the character of the appeal or parties.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mashiatunnissa v. Rani, [1890] 13 All 1 (FB) | Conflicting views on whether all parties must be involved in an appeal to extend limitation period under Limitation Act. | Referenced to illustrate judicial divergence and the lack of settled law on the requirement of parties in appeals affecting limitation. |
| Gopal Chunder Manna v. Gosain Das Kalay, [1898] 25 Cal 594 (FB) | Distinction between joint and several decrees in the context of appeals and limitation. | Cited as part of the conflicting authorities on the issue; the court noted the minority view favored appellants. |
| Christiana Benshown v. Benarashi Proshad, AIR 1914 Cal 583 | Considered the necessity of parties and scope of appeal for limitation purposes. | Formed the basis for the High Court’s judgment dismissing the appellants' application; court distinguished this view. |
| Satish Chandra Chaudhuri v. Girish Chandra Chakravarty, [1920] 47 Cal 813 | Different judicial approach on appeal and limitation period interpretation. | Part of the conflicting judicial opinions noted by the court; used to contrast with the court’s strict textual interpretation. |
| Dewan Abdul Alim v. Abdul Hafiz, AIR 1927 Cal 89 | Judicial stance on appeal requirements affecting limitation period. | Referenced among cases with opposing views; court did not adopt this restrictive approach. |
Court's Reasoning and Analysis
The court began by rejecting the contention that the 1920 appeal was invalid due to irregularity, holding that any application to an appellate court seeking to revise a subordinate court’s decision qualifies as an appeal in the ordinary sense, regardless of form or competence. The appeal was admitted, heard, and a decree was made, confirming its validity for limitation purposes.
Regarding the requirements that the appeal must include all affected parties (judgment-debtors) and imperil the entire decree, the court acknowledged the existence of conflicting judicial opinions but declined to read such qualifications into the plain language of Article 189. The court emphasized that limitation periods must be construed strictly according to the statute’s wording, which states time runs from the date of the appellate court’s decree “where there has been an appeal,” without additional conditions.
The court reasoned that although this strict interpretation might cause hardship or delay, equitable considerations do not justify deviating from the statute’s clear terms. It further noted that judgment-debtors are not prejudiced by this rule, as they may pay into court to avoid delay or hardship. Therefore, the court held that the limitation period for execution began only after the High Court’s 1922 decree dismissing the appeal, not from the Subordinate Judge’s 1920 decree.
Accordingly, the court agreed with the Subordinate Judge’s view that the execution application was within time and reversed the High Court’s contrary decision.
Holding and Implications
The appeal is allowed.
The court set aside the High Court’s decree dated 16th February 1926 and restored the Subordinate Judge’s order dated 4th August 1924, thereby holding that the limitation period for executing the mortgage decree began from the date of the appellate court’s decree dismissing Madan Mohan’s appeal in 1922. This decision confirms that an irregular but admitted appeal extends the limitation period under Article 189, without requiring all affected parties to be parties to the appeal or the entire decree to be imperilled.
The direct effect is that the appellants’ application for execution by sale was timely and valid. No new precedent beyond the strict textual interpretation of Article 189 was established.
Sir Dinshah Mulla.-
This appeal raises a question as to the construction of Art. 182, Sch. 1, Lim. Act, 1908. In a suit brought many years ago for partition of certain properties held jointly by the parties to this appeal and their predecessors, a receiver was appointed with power to raise a loan on the security of a mortgage of the properties. The receiver borrowed Rs. 18,000 from some of the cosharers, and on 10th July 1894, he executed a mortgage of the properties in their favour. Amongst the mortgagees were Nagendra Nath Dey and Pulin Behari Dey, who are the appellants before this Board, and Madan Mohan and his son, who are respondents 24 and 27 respectively. The position at that date was that some of the cosharers were mortgagees and all the cosharers were mortgagors.
In 1907, after the shares of the several cosharers in the partition suit had been allotted to them and the receiver discharged, Madan Mohan and his son instituted the suit out of which the present appeal arises in the Court of the Subordinate Judge of Hooghly to enforce the mortgage. In this suit Mad an Mohan claimed that the appellants (defendants 11 and 12) had assigned their 'interest in the mortgage to him. The Subordinate Judge upheld his claim, and after taking accounts between the parties, passed a preliminary mortgage decree declaring inter alia the liability of the appellants to pay a sum of Rs. 4,467 which they accordingly brought into Court, On appeal to the Sigh Court at Calcutta a compromise was effected between the parties, and on 10th June 1913 a preliminary decree in supersession of the decree of the Subordinate Judge was passed by the High Court in terms of the compromise. Under this decree Madan Mohan's claim against the appellants was disregarded, and the appellants wore shown as mortgage-creditors for Rs. 14,615.15-3. The appellants thereupon applied to the Subordinate Judge for the withdrawal of the Rs. 4,467. Madan Mohan opposed their application, re-asserting his former claim, but his contention was overruled, and the appellants were allowed to withdraw their deposit. Madan Mohan appealed to the High Court, but his appeal was dismissed.
In the preliminary decree as passed by the High Court the cosharers were ranged into two groups, one of decree-holders consisting of six sets of cosharers and the other of judgment debtors consisting of eight sets of cosharers. After the date of the decree two out of the eight judgment-debtors paid the amount due from them under the decree. The rest did not pay, and on 4th June 1916, Madan Mohan applied to the Subordinate Judge for a final mortgage decree. In his application he again claimed that the appellants had assigned their Interest in the mortgage to him, and prayed that an order should be made to that effect. On 24th June 1920 the Subordinate Judge delivered his judgment, disallowing Madan Mohan's claim, and a final decree was passed for the sale of the mortgaged properties that had come to the share of the remaining six judgment-debtors. The decree was drawn up on 2nd August 1920, but properly dated as of 24th June. It contained a declaration, in conformity with the judgment, that the appellants were entitled to payment of the abovementioned sum of Rs. 14,615-15-3 out of the proceeds of the sale of the properties.
On 27th August 1920, Madan Mohan presented an application to the High Court purporting to be an appeal from the "order" of the Subordinate Judge of 24th June 1920, and alleging, what was clearly untrue, that no decree had been drawn up. His objection was only to the decision against him in respect of the assignment, and he joined as parties to the appeal only the other decree-holders and not the judgment-debtors. The appeal though irregular in form as not being an appeal against the decree of the Subordinate Judge, and being insufficiently stamped for this purpose, was admitted and heard in due course by Woodroffe and Suhrawardy, JJ. Objection was taken to the form of the appeal; Madan Mohan asked to amend but this was refused. In the result the appeal was dismissed both on the ground of irregularity and upon the merits, and the dismissal was embodied in a decree of the High Court dated 24th August 1922, It is upon the effect of this appeal that the decision of the question under Art. 182, Lim. Act, now before the Board depends. On 3rd October 1923 the appellants presented an application to the Subordinate Judge for execution by sale of the mortgaged properties. It was opposed by some of the judgment-debtors, the present respondents 1 to 4, on the ground that it was barred by Art. 189. The material portion of that article is in these terms:
Description of application. Period of limitation Time from which period begins to run
For the execution of a decree or order of any civil Court not provided for by Art. 183 or by S. 48; Civil PC,1908. Three years 1. The date of the decree or order; or
2. (where there has been an appeal) the date of the final decree or order of the appellate Court.
If the three years are to be calculated, as the respondents contend, from the date of the decree of the Subordinate Judge, viz., the 24th June 1920, the application was manifestly out of time; it was within time if the critical date is that of the decree of the High Court of 24th August 1922, and the decision of this question depends on whether Madan Mohan's appeal which was dismissed on the latter date was an appeal within the meaning
of Cl. 2 in Col. 3 of the article cited above. The Subordinate Judge held that it was, and that the application was in time; the judgment-debtor-respondents appealed, and the High Court took the opposite view, and dismissed the application of the appellants.
The dismissal is supported upon three grounds, namely, (1) that Madan Mohan's application of 27th August 1920 (hereinafter for convenience referred to as the 1920 appeal), was by reason of its irregularity not an appeal at all, but merely an abortive attempt to appeal; (2) that an appeal in order to save limitation under Cl. 2 of the article must be one to which the persons affected, i. e., in the present case the judgment-debtors, were parties; and (3) that it must also be one in which the whole decree was imperilled. In their Lordships' opinion there is no force in the first of these contentions. There is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no leas an appeal because it is irregular or incompetent. The 1920 appeal was admitted and was heard in due course, and a decree was made upon it.
The second and third contentions have been the subject of much difference of opinion in India. In Mashiatunnissa v. Rani, [1890] 13 All 1=(1890) AWN 207 (FB) three of the Judges in the Full -Court took one view, and two the other. In Gopal Chunder Manna v. Gosain Das Kalay, [1898] 25 Cal 594=2 CWN 556 (FB) a Calcutta Full Bench followed the Allahabad minority, though drawing a distinction between oases of joint and of several decrees. Subsequently further differences of opinion manifested themselves even in the Calcutta Court: see Christiana Benshown v. Benarashi Proshad, AIR 1914 Cal 583 =22 IC 685 (upon which the judgment of the High Court in the present case was based); and Satish Chandra Chaudhuri v. Girish Chandra Chakravarty, [1920] 47 Cal 813=60 IC 915 and Dewan Abdul Alim v. Abdul Hafiz, AIR 1927 Cal 89 =97 IC 338=53 Cal 901 in both of which cases the opposite view seems to have prevailed. In the Courts of Madras, Bombay and Patna, the view which was taken by the minority in the Allahabad case, and which favours the present appellants, has ultimately prevailed.
Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the article: "where there has been an appeal," time is to run from the date of the decree of the appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. 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 considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. 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 re. suit is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court. But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of 24th June 1920, time only ran against the appellants from 24th August 1922, the date of the appellate Court's decree. They are therefore in agreement upon this point with the Subordinate Judge, and they think that the order passed by him on 4th August 1924 was right.
Their Lordships will accordingly humbly advise His Majesty that this appeal should be allowed, that the decree of the High Court dated 16th February 1926, should be set aside, and the order of the Subordinate Judge dated 4th August 1924, restored. Respondents 1 to 4 must pay the cost of the appellants in the High Court and before this Board.
Appeal allowed.
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