Back
1927 Supreme(SC) 12
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD PHILLIMORE, LORD DARLING, MR. AMEER Ali, AND SIR LANCELOT SANDERSON.
BANKU BEHARI CHATTERJI - Appellant
Versus
NARAINDAS DUTT (JUDGMENT-DEBTORS) - Respondents
On appeal from the High Court at Calcutta.
Decided On : Feb. 22. 1927.
Solicitors for appellant:W. W. Box & Co, Solicitors for respondents: Watkins & Hunter.
The transmission of a decree from a High Court to a District Court is a ministerial act, not a judicial one, and therefore does not constitute a revival of the decree to extend the limitation period for execution under the Indian Limitation Act.
Headnote:(A) Indian Limitation Act, 1908 - Schedule I, Article 183 - Execution of decree - Period of limitation - Right to enforce judgment - Accrual of right - Personal decree - The twelve-year limitation period to enforce a decree begins to run from the date the right to enforce the judgment accrues - In mortgage suits, the right to a personal decree accrues along with other rights when the final decree is made - A decree holder cannot wait for previous mortgagees to exhaust their rights before taking steps to enforce their own decree, as every party to a suit is an actor capable of enforcing the decree.
(B) Indian Limitation Act, 1908 - Schedule I, Article 183 - Revivor of decree - Application for transmission of decree from a High Court to a District Court - Ministerial act vs. Judicial act - An application for the transmission of a decree from a High Court to a District Court is a mere ministerial act of an officer of the Court and not a judicial act of a judge - Such transmission does not constitute a revival of the decree within the meaning of the Act - Even where a transmission order is amended by consent to rectify parties or clarify the extent of liability, it remains a ministerial act of putting the order into the correct form and does not transform it into a judicial order of revival.
Facts of the case:
A mortgagee obtained a final decree in 1905. Following the satisfaction of prior mortgagees through property sales in 1905 and 1917, the mortgagee applied in 1919 for the transmission of the decree to a district court to execute it against the legal representatives of the deceased mortgagor. The respondents contended that the application was barred by the twelve-year limitation period prescribed under Article 183 of the Indian Limitation Act, 1908.
Findings of Court:
The court found that the right to enforce the decree had to be exercised within twelve years from the date of the final decree in 1905. Since no steps were taken until 1919, the application was barred. The court further held that the transmission of the decree was a ministerial act and did not revive the limitation period.
Issues: Whether the application for execution was barred by the twelve-year limitation period under Article 183 of the Indian Limitation Act, 1908, and whether the transmission of a decree from a High Court to a District Court constitutes a revival of the decree for the purpose of extending limitation.
Ratio Decidendi: The right to a personal decree accrues upon the passing of the final decree; therefore, the decree holder must take timely steps to enforce it and cannot rely on the inaction of other mortgagees. Additionally, the transmission of a decree is a ministerial act and not a judicial act, meaning it does not revive the decree or reset the limitation clock under the Act.
Result: Appeal dismissed with costs.
Legal Category Hierarchy
-
practice and procedure
-
civil procedure
-
execution of decrees
- transmission of decrees
-
execution of decrees
-
civil procedure
-
limitation law
- execution of judgments
-
property law
- mortgages
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 ful
