Judgement

Appeal (No. 84 of 1928) from a decree of the High Court (February 16, 1926) reversing an order of the Subordinate Judge of Hooghly (August 4, 1924).

The sole question for determination was whether, as held by the High Court (Suhrawardy and Graham JJ.), an application for the execution of a decree was barred by the Indian Limitation Act, 1908, Sch. I., art. 182.

The facts, and the terms of the above article, appear from the judgment of the Judicial Committee.

The appeal was argued in April, 1931, but was ordered to be re-argued.

1932. Feb. 25, 26. De Gruyther K.C. and Jinnah for the appellants.

Narasimham and Subba Row for respondents Nos. 1 to 4.

[Reference was made to authorities reviewed in the judgment of Graham J. in Dewan Abdul Alim v. Abdul Hakam (( 1926) I. L. R. 53 C. 901.); also (for the respondents) to Kotaghiri Venkata Subbama Rao v. Vellanki Venkatarama Rao (( 1900) L. R. 27 I. A. 197.) and to Order xxxiv., rr. 4 and 5.]

April 21. The judgment of their Lordships was delivered by

SIR DINSHAH MULLA. This appeal raises a question as to the construction of art. 182 of Sch. I. of the Indian Limitation Act, 1908.

In a suit brought many years ago for partition of certain properties held jointly by the parties to this appeal and their predecessors, a receiver was appointed with power to raise a loan on the security of a mortgage of the properties. The receiver borrowed Rs. 18,000 from some of the co-sharers, and on July 10, 1894, he executed a mortgage of the properties in their favour. Amongst the mortgagees were Nagendra Nath Dey and Pulin Behari Dey, who are the appellants before this Board, and Madan Mohan and his son, who are respondents Nos. 24 and 27 respectively. The position at that date was that some of the co-sharers were mortgagees and all the co-sharers were mortgagors.

In 1907, after the shares of the several co-sharers in the partition suit had been allotted to them and the receiver discharged, Madan Mohan and his son instituted the suit out of which the present appeal arises in the Court of the Subordinate Judge of Hooghly to enforce the mortgage. In this suit Madan Mohan claimed that the appellants (defendants Nos. 11 and 12) had assigned their interest in the mortgage to him. The Subordinate Judge upheld his claim, and, after taking accounts between the parties, passed a preliminary mortgage decree declaring (inter alia) the liability of the appellants to pay a sum of Rs.4467, which they accordingly brought into Court.

On appeal to the High Court at Calcutta a compromise was effected between the parties, and on June 10, 1913, a preliminary decree in supersession of the decree of the Subordinate Judge was passed by the High Court in terms of the compromise.

Under this decree Madan Mohans claim against the appellants was disregarded, and the appellants were shown as mortgage-creditors for Rs. 14,615-15-3. The appellants thereupon applied to the Subordinate Judge for the withdrawal of the Rs.4467. Madan Mohan opposed their application, reasserting his former claim, but his contention was overruled, and the appellants were allowed to withdraw their deposit. Madan Mohan appealed to the High Court, but his appeal was dismissed.

In the preliminary decree as passed by the High Court the co-sharers were ranged into two groups, one of decree-holders consisting of six sets of co-sharers, and the other of judgment-debtors consisting of eight sets of co-sharers. After the date of the decree two out of the eight judgment-debtors paid the amount due from them under the decree. The rest did not pay, and on June 4, 1916, Madan Mohan applied to the Subordinate Judge for a final mortgage decree. In his application he again claimed that the appellants had assigned their interest in the mortgage to him, and prayed that an order should be made to that effect. On June 24, 1920, the Subordinate Judge delivered his judgment, disallowing Madan Mohans claim, and a final decree was passed for the sale of the mortgaged prop