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1935 Supreme(SC) 5
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD TOMLIN, LORD THANKERTON, LORD RUSSELL OF KILLOWEN, SIR LANCELOT SANDERSON AND SIR SHADI LAL.
MAQBUL AHMAD - Appellant
Versus
PRATAP NARAIN SINGH - Respondents
On Appeal from the High Court at Allahabad.
Decided On : Feb. 7. 1935.
Solicitors for appellants :Francis & Harker. Solicitors for respondents: Hy. S. L. Polak & Co.
Section 14 of the Limitation Act requires the 'same relief' for time exclusion; execution of a preliminary decree differs from seeking a final decree. Section 4 applies only if the limitation expires on a closed day and does not extend the overall period. No general judicial discretion exists to override the Act.
Headnote:(A) Indian Limitation Act, 1908 - Sections 3, 4, and 14(2) - Mortgage suit - Application for final decree - Limitation period - Exclusion of time - For the purpose of excluding time under Section 14(2), the proceeding must be for the "same relief"; an application to obtain execution under a preliminary decree is not the same relief as an application for a final mortgage decree for sale. Section 4 provides that where the period of limitation expires on a day when the Court is closed, the application may be made on the day the Court re-opens; it does not alter the length of the prescribed period. Where exclusions under Section 14 are added to the prescribed period, and the resulting expiration date falls on a day the Court is open, the benefit of Section 4 cannot be claimed. (Paras 15-21)
(B) Indian Limitation Act, 1908 - Section 3 - Judicial Discretion - Section 3 is peremptory; there is no general judicial discretion to relieve a suitor from the provisions of the Act in cases of hardship or where the party was misled by an error in the form of a decree. Statutory discretion cannot be implied outside the limits of the Act. (Paras 23-24)
Facts of the case:
A preliminary mortgage decree was obtained, and subsequent appeals were decided on a specific date. The decree-holder spent a period attempting to execute the preliminary decree before applying for a final decree. The application for a final decree was first presented to a court that lacked jurisdiction and was subsequently presented to the proper court upon the return of the petition. The application was challenged as being barred by limitation under Article 181 of the Act.
Findings of Court:
The period spent in execution proceedings cannot be excluded under Section 14 as it was not for the same relief. The vacation period cannot be excluded under Section 4 because the limitation period, after accounting for the time spent in the wrong court, did not expire on a day the court was closed. No general discretion exists to override the statutory provisions of the Act based on hardship.
Issues: Whether the time spent in execution proceedings and the court vacation period could be excluded from the limitation period, and whether the court possesses general discretion to grant relief from the Limitation Act in cases of hardship.
Ratio Decidendi: Section 14 requires the proceedings to be for the same relief; execution of a preliminary decree is distinct from seeking a final decree. Section 4 only allows filing on the reopening day if the limitation expires during a closure; it does not extend the total limitation period. The Limitation Act is peremptory, and the duty of the court is to give effect to it regardless of whether it is referred to in the pleadings.
Result: Appeal dismissed.
Legal Category Hierarchy
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practice and procedure
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limitation
- calculation of limitation period
- exclusion of time
- judicial discretion
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limitation
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civil law
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property law
- mortgage
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property law
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
