Judgement

Appeal (No. 44 of 1932) from a decree of the High Court (May 6, 1929) affirming a decree of the Subordinate Judge at Basti (April 29, 1924).

On June 7, 1920, the appellants, upon an appeal to the High Court, obtained a preliminary mortgage decree. The question arising in the present appeal was whether an applica tion by them on August 6, 1923, for a final mortgage decree was barred by limitation, and involved a consideration of the effect of s. 4 and s. 14, sub-s. 2, of the Indian Limitation Act, 1908.

The facts and the terms of the relevant sections of the Act appear from the judgment of the Judicial Committee.

Both Courts in India held that the application was barred. In the High Court the learned judges (Sulaiman and Pullan JJ.) in reference to the effect of s. 4 of the Act referred to the Madras decisions in Mira Mohidin Rowther v. Nallaperumal Pillai (( 1911) I. L. R. 36 M. 131.) and Ummathu v. Pathumma (( 1921) I. L. R. 44 M. 817.) and stated that the view there taken had been followed in a case in Allahabad. They disagreed with the view expressed in Basvanappa v. Krishnadas. (( 1920) I.

L. R. 45 B. 443.)

1935. Feb. 7. Abdul Majid for the appellants. The period between December 23, 1920, and November 8, 1921, should be excluded ; that would make the application in time. The relief there sought was not strictly the " same relief " as is now sought, but the appellants in applying for execution were deceived by the decree being upon the form appropriate to a money decree. That being an error of the Court the appellants should not suffer from it. Even if that period cannot be excluded, the three years allowed by art. 181 expired during the vacation, and as prescribed by s. 4 it was made on the day when the Court reopened. It was then made to the proper Court.

[LORD TOMLIN. That contention cannot be raised now, as it was not raised in either Court in India.]

Abdul Majid. It was rightly held that if it was the wrong Court the appellants were entitled to exclude forty-eight days under s. 14, sub-s. 2. But they were also entitled to exclude the period of the vacation Basvanappa v. Krishnadas. (( 1920) I. L. R. 45 B. 443.) It is conceded that a contrary view has been taken in Madras Mari Naganna v. Krishnamurthi. (( 1931) I. L. R. 55 M. 286.) It is submitted that that view is wrong. But even if the vacation period is not excluded, the forty-eight days should run from the date when the Court reopened. In any case the barring of the application was a great hardship; as it was due to the error of the Court also to the change of jurisdiction, in equity the application should be held to have been in time Hemendra Mohon Khasnobis v. Dharaninath Chanda (( 1920) 25 C. W. N. 376.) ; Brij Indar Singh v. Kanshi Ram. (( 1917) L. R. 44 I. A. 218.)

Dunne K.C. and Wallach for respondents 1 to 5 were not called upon.

The judgment of their Lordships was delivered by

LORD TOMLIN. This is an appeal from a decree of the High Court of Judicature at Allahabad dated May 6, 1929, by which a decree dated April 29, 1924, made by the Subordinate Judge at Basti was affirmed. The decree of the Subordinate Judge had dismissed the application of the decree-holder in a mortgage suit to have the preliminary decree in the suit made absolute. The present appeal is brought by representatives of the decree-holder since deceased, complaining of the decrees to which reference has been made.

The facts of the case are shortly these. A preliminary mortgage decree was obtained on May 7, 1917, which was amended in some respects not material to be particularized on May 22, 1917.

There were a number of mortgagors interested in different villages comprised in the mortgage, and some of them appealed to the High Court against the preliminary decree. There were in fact two such appeals. One appeal succeeded, with the result that certain villages were excluded from the decree, and the suit of the mortgagee was dismissed as against those appellants. So far as they were c