Judgement

Appeal (No. 74 of 1919) from a judgment and decree of the High Court (July 21, 1916) reversing a decree of the Subordinate Judge of Murshidabad.

The suit was instituted by the appellants on September 9, 1912, against the respondents, the representatives of one Dhanpat Singh, deceased, under a covenant of indemnity contained in a deed executed by Dhanpat Singh on April 23, 1894. The facts of the case and the terms of the deed appear from the judgment of the Judicial Committee. Shortly stated, the plaintiffs sought to recover with interest a sum which they had paid on February 2, 1910, to discharge a preliminary mortgage decree made by the High Court at Calcutta on August 26, 1905. The appellants had appealed against the decree to the Privy Council, but had paid the sum in question in settlement and had ceased to prosecute the appeal, which was dismissed for want of prosecution on April 16, 1910.

The Subordinate Judge made a decree in favour of the appellants. He was of opinion that the defendants having received notice of the application to enter up satisfaction of the decree, it was not open to them to contend that the decree was barred by limitation, and that consequently the payment by the applicants was voluntary.

The High Court reversed the decision of the trial judge. The learned judges (Chitty and Richardson JJ.) held that the payment made by the plaintiffs was a voluntary payment, as the claim on the decree was barred by limitation. They referred to the two decisions of the Privy Council cited in the present judgment as showing conclusively that a claim to enforce the decree would have been barred. Referring to the ground of the decision of the trial judge they said that the statement to the Court that the decree had been satisfied could not in any way affect the defendants rights in the present suit.

1921. June 10, 13. Sir George Lowndes K.C. and Parikh for the appellants. The appellants were entitled to recover under the deed of indemnity. The payment which they made on February 2, 1910, was not a voluntary payment. At the time when the payment was made the High Court at Calcutta had consistently taken the view that an application for an order absolute for sale was not governed by art. 179 of Sch. II. of the Indian Limitation Act see Puma Chandra Mandal v. Radha Nath Dass. (( 1906) I. L. R. 33 C. 875.) It was therefore reasonably prudent on the part of the appellants to pay. The decisions of the Privy Council in 1914 in Abdul Majid v. Jawahir Lal (( 1914) I. L. R. 36 A. 350.) and Batuk Nath v. Munni Dei (( 1914) L. R. 41 I. A. 104.) do not affect that contention. Further, the respondents were not at the date of payment barred from applying for an order to sell. The decree did not become effective until the expiration of the time allowed for payment—namely, six months. Time does not run until a decree is effective Maharaja of Darbhanga v. Homeshvar Singh. (( 1920) L. R. 48 I. A. 17.) Consequently, on January 1, 1909, when Sch. I. of the Indian Limitation Act, 1908, came into force the time allowed under the Act of 1877 had not expired. Art. 182 of Sch. I. of the Act of 1908 introduced a new provision by clause 2—namely, that where there was an appeal from a decree or order and the appeal was withdrawn time for executing the decree or order was to run from the date of the withdrawal. The decisions of the Board above referred to were under the Act of 1877, which did not contain the provision in art. 182 (2.). But even if the equitable mortgagees were barred at the date of the payment from enforcing the decree in their favour, the appellants were entitled to recover the deeds from their possession and so to clear their title. The terms of the deed of indemnity render the respondents liable for expense incurred by them for that object.

Kenworthy Brown for the respondents. The last contention is now advanced for the first time ; it was not put forward even in the appellants case upon this appeal. It is consequentl