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HIGH COURT OF CALCUTTA
P. B. Mukharji
NIRMALA SUNDARI DASSI - Appellant
Versus
SUDHIR KUMAR MITTER - Respondent
Suit 158 Of 1935
Decided On : MARCH 18, 1955
LIMITATION ACT - ARTICLE 183 - FINAL MORTGAGE DECREE FOR SALE - BARRED BY LIMITATION - REVIVOR AND ACKNOWLEDGMENT - CONSENT DECREE - ACKNOWLEDGMENT IN WRITING - SIGNATURE BY AGENT.
Fact of the Case:
The plaintiff obtained a final mortgage decree for sale in 1936. The mortgaged property was sold in a prior mortgagee's suit in 1938. The plaintiff participated in subsequent suits involving the same mortgaged property but did not obtain any relief. In 1949, a consent decree was passed in a suit by another prior mortgagee, which provided that the plaintiff's account in her own suit be treated as her account in that suit and that the mortgaged properties be sold to satisfy the claims of the prior mortgagees and the plaintiff. The plaintiff applied for leave to draw up and file the final decree in 1954, which was granted ex parte. The Registrar made a special report to the court seeking its opinion on whether the final decree was barred by limitation.
Finding of the Court:
The court held that the final decree for sale was not barred by limitation. It held that Article 183 of the Limitation Act, which provides a limitation period of 12 years for applications to enforce a judgment or decree of the High Court, did not apply because there was no application by the decree-holder to enforce the decree. The court also held that the consent decree in 1949 constituted a revivor of the final decree for sale and that the plaintiff's account in her own suit being treated as her account in that suit amounted to an acknowledgment of the debt. The court further held that the consent decree was in writing and signed by the mortgagor's agent, which satisfied the requirements of an acknowledgment under Article 183 of the Limitation Act.
Issues: 1. Whether the final mortgage decree for sale was barred by limitation under Article 183 of the Limitation Act? 2. Whether the consent decree in 1949 constituted a revivor of the final decree for sale? 3. Whether the plaintiff's account in her own suit being treated as her account in the consent decree amounted to an acknowledgment of the debt? 4. Whether the consent decree was in writing and signed by the mortgagor's agent?
Ratio Decidendi: 1. Article 183 of the Limitation Act does not apply to a final mortgage decree for sale because there is no application by the decree-holder to enforce the decree. 2. A consent decree can constitute a revivor of a final decree for sale if it involves a determination that the decree is capable of execution and that the decree-holder is entitled to enforce it. 3. An acknowledgment of a debt under Article 183 of the Limitation Act can be made in a consent decree if it is in writing and signed by the person liable to pay or his agent.
Final Decision: The court held that the final decree for sale was not barred by limitation and that the reference should proceed.
( 1 ) THIS matter arises out of a special report by the Registrar made under Chapter XXVI Rule 50 of the Original Side Rules of this High Court, seeking the opinion of this Court whether the Final Mortgage Decree for Sale, under which he is selling the mortgaged premises, has become barred by limitation. The Registrar in his Special Report dated 23-8-1954 states:"i make a Special Report to the Hon'ble Court seeking the opinion of the Court on the following questions: (1) Is the decree dated 20-4-36 barred by limitation? (2) If so, can any Reference proceedings be now initiated under the said decree? i direct Shri S. K. Ghosh, Solicitor, to take out a Notice of Motion and seek directions of the Court on the points contained in this Special Report, within a week from the re-opening of the Court after the Long Vacation. The Reference stands adjourned 'sine die' with liberty to mention. "the attorney for the plaintiff according to the directions pf the Registrar's Special Report took out the Notice of motion on 23-11-1954 as required under Rule 50 Chap. XXVI of the Original Side Rules.
( 2 ) A point of law of very considerable interest and importance arises for determination on this Special Report This issue for determination is whether a Final Mortgage Decree for Sale can itself be barred by limitation as provided by Article 183 of the Limitation Act, the decree being one made by this High Court. Questions of revivor and acknowledgment are also involved in the facts of this case.
( 3 ) SOME essential facts and dates in the numerous proceedings in respect of the premises concerned require to be stated for a better appreciation of the points and their ultimate decision. On 19-5-1934 the defendant in the suit mortgaged to the plaintiff premises No. 86/1, Cornwallis Street, 7/c, Kirti Mittei Lane, 13/1, Desspara and 31, Golaghat subject to previously created charges. The plaintiff filed this present mortgage suit in 1935. A preliminary decree was passed in favour of the plaintiff on 8-3-1935. On 23-7-1935 after taking the accounts the Registrar filed his report certifying that a sum of Rs. 3,914-6-6p was due by the defendant to the plaintiff on the said mortgage. Thereafter on 20-4-1936, the final decree for sale was passed in favour of the plaintiff in this mortgage suit. The main point for determination in the Special Report is whether this final decree for sale dated 20-4-1936 is barred by limitation. The form of the final decree for sale in this case followed the standard form as provided in Form VI of Appendix D to the First Schedule of the Civil Procedure Code by directing inter alia:"it is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned Dr a sufficient part thereof be sold with the approbation of the said Registrar to the best purchaser or purchasers that can be got for the same. "
( 4 ) DURING the period from this final decree for sale in this suit on 20-4-1936 until 17-2-1954 diverse proceedings took place in respect of the same mortgaged premises in suits brought by prior mortgagees with the present plaintiff as party defendant in those suits and proceedings. As none of those proceedings ultimately helped the present plaintiff mortgagee to realise her dues on her mortgage decree, she obtained leave of this Court on 17-2-1954 to draw up and complete and file the said final decree dated 20-4-1936 pursuant to that leave she filed the said final decree in Court on 29-4-1954 and thereafter the present reference before the Registrar for sale began. It is at this reference that the point of limitation was taken by the mortgagor judgment-debtor when the Registrar made the Special Report on the point of limitation.
( 5 ) IT will be necessary at this stage now to focus attention on the period of time between the date of the final decree for sale in this suit on 20-4-1936 and the ex parte order of 17-2-1954 granting leave to draw up and file the said decree. I
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