Judgement

Appeal (No. 79 of 1925) from a decree of the High Court (January 28, 1924) reversing an order of the Subordinate Judge of Hoogly (August 22, 1921).

The main question on the appeal was whether an application by the present appellant, dated January 4, 1921, for execution of a decree of the High Court in its original jurisdiction dated August 27, 1902, was barred by the Indian Limitation Act, 1908, Sch. I., art. 183.

The facts appear from the judgment of the Judicial Committee.

The Subordinate Judge held that the application was not barred.

The High Court reversed his order. The learned judges (Richardson and Page JJ.), applying Chutterput Singh v. Sait Sumari Mull (I), held that the decree had not been revived so as to extend the period of limitation under art. 183.

1927. Jan. 27. Sir George Lowndes K.C., and Dube for the appellant.

De Gruyther K.C., and E. B. Raikes for respondents Nos. 1 and 2.

The appellants sought to distinguish Chutterput Singh v. Sait Sumari Mull (I. L. R. 43 C. 903.) on the grounds stated in the present judgment; reference was made also to Srihary Mundul v. Murari Chawdhry (( 1886) I. L. R. 13 C. 257.) and Krishna Kumar v. Pasupati Banerjee. (( 1921) 25 Cal.

W. N. 740.)

Feb. 22. The judgment of their Lordships was delivered by

LORD PHILLIMORE. This case involves two questions upon the Indian Limitation Act. One Sarat Chunder Dutt effected four mortgages upon his various properties. The first encumbered two properties only; the second and third encumbered the same two properties and thirty-four others; the fourth, which has given rise to the present appeal, encumbered all thirty-six and nominally, at any rate, some three others.

The fact that there were these additional properties might in one view have some bearing upon the points to be decided, and the counsel for the respondents insisted upon them; but in their Lordships view they are so shadowy and uncertain that they may be thrown out of consideration in the present case.

The date of the fourth mortgage was December 21, 1900 —the fourth mortgagee being the present appellant.

In 1903 the mortgagor partly paid off the fourth mortgagee by assigning to him certain mortgages valued at Rs.35,000 in part satisfaction of his claim.

In 1901 the first mortgagee brought a suit on the Original Side of the High Court of Calcutta, making the three subse quent mortgagees and the mortgagor parties, and obtained the usual preliminary decree on August 27, 1902, in respect of his mortgage and the other mortgages and a final decree on February 4, 1905.

In August, 1905, the two properties, which were the subject of the first mortgage, were sold, and sufficient was realized to pay off the first mortgagee and leave some surplus.

In February, 1917, the properties subject to the second and third mortgages were sold, and their proceeds with the balance left from the previous sale about equalled what was due, possibly not quite enough to pay them. But apparently the second and third mortgagees were satisfied.

The fourth mortgagee took no further steps. In April, 1919, the mortgagor died, leaving two sons, the respondents, numbers 1 and 2, and on May 20, 1919, the appellant, on the suggestion that the mortgagor was dead, that his two sons and his widow represented him, and that he had left property outside the limits of the original jurisdiction of the High Court, and within the jurisdiction of the District Court at Hoogly, made an application that satisfaction of his judgment might be entered in respect of the sum of Rs.35,000, and that he might be at liberty to execute his decree for Rs.82,725, being the balance of principal and interest against the widow and the two sons, and that for this purpose the proper papers should be transmitted to the District Court at Hoogly.

Upon this suggestion an administrative order according to the cursus curiae was made by the registrar and supported by a certificate of a judge stating that satisfaction had not been made of the full