Judgement

Appeal from a judgment and decree of the High Court (June 4, 1910) affirming a judgment and decree of the Subordinate Judge of Agra (September 8, 1908).

The question for determination in the appeal was whether the Courts below had rightly dismissed an application made by the appellant to execute a decree dated March 29, 1898.

One Sheo Narain brought a suit to enforce a mortgage, joining as defendants the mortgagor, certain transferees of the equity of redemption, and (according to the then existing practice) certain prior mortgagees. On Mardi 29, 1898, the Subordinate Judge of Agra made an order in that suit ordering that the plaintiff should pay to the prior mortgagees a stated amount (being the amount due to them) within five months, and that if he failed to do so his suit should stand dismissed, but that if he carried out the conditions of the order then it was decreed that a stated sum (being the amount due upon his mortgage) should be payable to him, and that if this payment was not made by a fixed date the property should be sold.

Sheo Narain appealed to the High Court against that part of the order which imposed the condition as to payment to the prior mortgagees. The High Court affirmed the order, but extended the time for paying off the prior mortgagees to August 9, 1900. From this order Sheo Narain appealed to His Majesty in Council.

While this latter appeal was pending Sheo Narain and the present appellant, to whom the decree was assigned, made various applications which resulted in the time for paying off the prior mortgagees being extended to March 20, 1902. An application by the appellant on that date to further extend the time was refused.

The appeal of Sheo Narain to His Majesty in Council was dismissed on December 15, 1904, under r.

V. of the Order in Council of June 13, 1853, which provides that, in default of the appellant or his agent taking effectual steps for the prosecution of the appeal within six calendar months from the arrival and registration of the transcript, the appeal shall stand dismissed without further order.

In September, 1907, the appellant paid into Court the amount referred to in the decree of March 29, 1898, as due to the prior mortgagees, and on October 2, 1907, he applied for execution of the decree under s. 89 of the Transfer of Property Act (Act IV. of 1882).

The Subordinate Judge by his judgment, delivered on September 8, 1908, dismissed the application upon the ground that the appellant had not complied with the condition in the decree by paying off the prior mortgagees within the extended time. He held, however, that the suit was not barred by limitation since the appellants appeal to His Majesty in Council was dismissed upon December 15, 1904, that date being within the three years provided by the Limitation Act, 1877, Sched. II. art. 179.

Upon appeal to the High Court, that Court agreed with the view of the Subordinate Judge upon the first point, and accordingly dismissed the appeal without expressing any opinion upon the question of limitation.

De Gruyther, K.C., and Parikh, for the appellant. The effect of not fulfilling the condition in the decree of March 29, 1898, was only to deprive the appellant of his right to redeem the prior mortgages. The decree could only be made under the Transfer of Property Act, 1882, and must therefore be construed so as to accord with ss. 92 and 93 of that Act, and the appellant cannot be deprived of his right to enforce the mortgage without a further and final decree debarring him. [Mungul Per shad Dichit v. Grija Kant Lahiri Choudhry (( 1881) L. R. 8 Ind. Ap. 123.), Ram Kirpal Shukul v. Mussumat Rup Kuari (( 1883) L. R. 11 Ind. Ap. 37.), and Bani Ram v. Nanhu Mal (( 1884) L. R. 11 Ind. Ap. 181.) were referred to.]

Sir Erle Richards, K.C., and Dube, for the respondents. The decree was made under s. 88 of the Transfer of Property Act, 1882. That part of the decree which provides that in default of the condition being carried out the su