Judgement

Appeal from a judgment and decree of the High Court (June 4, 1910) affirming a judgment and decree of the Subordinate Judge of Agra (September 8, 1908).

The question for determination in the appeal was whether the Courts below had rightly dismissed an application made by the appellant to execute a decree dated March 29, 1898.

One Sheo Narain brought a suit to enforce a mortgage, joining as defendants the mortgagor, certain transferees of the equity of redemption, and (according to the then existing practice) certain prior mortgagees. On Mardi 29, 1898, the Subordinate Judge of Agra made an order in that suit ordering that the plaintiff should pay to the prior mortgagees a stated amount (being the amount due to them) within five months, and that if he failed to do so his suit should stand dismissed, but that if he carried out the conditions of the order then it was decreed that a stated sum (being the amount due upon his mortgage) should be payable to him, and that if this payment was not made by a fixed date the property should be sold.

Sheo Narain appealed to the High Court against that part of the order which imposed the condition as to payment to the prior mortgagees. The High Court affirmed the order, but extended the time for paying off the prior mortgagees to August 9, 1900. From this order Sheo Narain appealed to His Majesty in Council.

While this latter appeal was pending Sheo Narain and the present appellant, to whom the decree was assigned, made various applications which resulted in the time for paying off the prior mortgagees being extended to March 20, 1902. An application by the appellant on that date to further extend the time was refused.

The appeal of Sheo Narain to His Majesty in Council was dismissed on December 15, 1904, under r.

V. of the Order in Council of June 13, 1853, which provides that, in default of the appellant or his agent taking effectual steps for the prosecution of the appeal within six calendar months from the arrival and registration of the transcript, the appeal shall stand dismissed without further order.

In September, 1907, the appellant paid into Court the amount referred to in the decree of March 29, 1898, as due to the prior mortgagees, and on October 2, 1907, he applied for execution of the decree under s. 89 of the Transfer of Property Act (Act IV. of 1882).

The Subordinate Judge by his judgment, delivered on September 8, 1908, dismissed the application upon the ground that the appellant had not complied with the condition in the decree by paying off the prior mortgagees within the extended time. He held, however, that the suit was not barred by limitation since the appellants appeal to His Majesty in Council was dismissed upon December 15, 1904, that date being within the three years provided by the Limitation Act, 1877, Sched. II. art. 179.

Upon appeal to the High Court, that Court agreed with the view of the Subordinate Judge upon the first point, and accordingly dismissed the appeal without expressing any opinion upon the question of limitation.

De Gruyther, K.C., and Parikh, for the appellant. The effect of not fulfilling the condition in the decree of March 29, 1898, was only to deprive the appellant of his right to redeem the prior mortgages. The decree could only be made under the Transfer of Property Act, 1882, and must therefore be construed so as to accord with ss. 92 and 93 of that Act, and the appellant cannot be deprived of his right to enforce the mortgage without a further and final decree debarring him. [ Mungul Per shad Dichit v. Grija Kant Lahiri Choudhry (( 1881) L. R. 8 Ind. Ap. 123.), Ram Kirpal Shukul v. Mussumat Rup Kuari (( 1883) L. R. 11 Ind. Ap. 37.), and Bani Ram v. Nanhu Mal (( 1884) L. R. 11 Ind. Ap. 181.) were referred to.]

Sir Erle Richards, K.C., and Dube, for the respondents. The decree was made under s. 88 of the Transfer of Property Act, 1882. That part of the decree which provides that in default of the condition being carried out the suit shall be dismissed is clear in its terms and is effective and binding even if wrong in form Papamma Rao Bahadur v. Vira Pratapa Korkonda . (( 1896) L. R. 23 Ind. Ap. 32, at

p. 35.)

Further, the application is barred under the Limitation Act, 1877, Sched. II., art. 179, which provides that the period of limitation in the case of an application to execute an unregistered decree, not otherwise provided for, shall be three years running from " the date of the final decree or order of the Appellate Court." The dismissal of an appeal to His Majesty in Council under r. V. of June 13, 1853, is not an order within that article. Under that rule no formal order is required. The time, therefore, began to run from August 9, 1900, the date of the decree of the High Court, and the application is barred.

De Gruyther, K.C., in reply. Once a petition to appeal to His Majesty in Council is lodged it can only be dismissed by an Order in Council. Rule V. is part of an Order and a dismissal under that rule is a dismissal by order. Appeals are not automatically dismissed upon the expiration of the six months, but only upon notice from the registrar. This is an executive act which brings into operation the Order of June 13, 1853, and is effective as an order within art. 179.

The judgment of their Lordships was delivered by

SIR JOHN EDGE. This is an appeal from a decree, dated June 4, 1910, of the High Court of Judicature at Allahabad, which dismissed an appeal by the appellant here from a decree of the Subordinate Judge of Agra, dated September 8, 1908, dismissing an application which had been made on October 2, 1907, to the Court of the Subordinate Judge by Batuk Nath for the execution of a decree of March 29, 1898.

The decree of March 29, 1898, had been made by the then Subordinate Judge of Agra in favour of one Sheo Narain in a suit which had been brought by him under the Transfer of Property Act, 1882, for sale of certain immovable property. By that decree it was ordered that if Sheo Narain should fail to pay a prior mortgage debt within five months from March 29, 1898, his suit should stand dismissed with costs. From that decree of March 29, 1898, an appeal was brought to the High Court of Judicature at Allahabad. That appeal was dismissed by the High Court by its decree of February 12, 1900, but in dismissing the appeal the High Court extended the time for pay ment of the prior mortgage debt to August 9, 1900. It has not been alleged or proved that any certified copy of the decree of March 29, 1898, was registered within the meaning of art. 179 of the Second Schedule of the Indian Limitation Act, 1877. From the decree of February 12, 1900, of the High Court an appeal to His Majesty in Council was brought. On December 15, 1904, the appeal to His Majesty in Council stood dismissed for non-prosecution under r. V. of the Order in Council of June 13, 1853, without further order.

On September 26, 1901, Sheo Narain had assigned his decree-of March 29, 1898, to Babu Batuk Nath. During the pendency of the appeal to His Majesty in Council some orders had been made by the Court of the Subordinate Judge of Agra extending the time for the payment of the prior mortgage debt, but the last application for an extension of time for the payment of the prior mortgage debt which was made to his Court was dismissed by the then Subordinate Judge of Agra by his order of March 20, 1902, and on June 7, 1902, the Subordinate Judge dismissed an application for a review of his order of March 20, 1902.

In making his decree of September 8, 1908, dismissing the application of October 2, 1907, the Subordinate Judge held that the period of limitation which was applicable to the case ran from the dismissal for want of prosecution of the appeal to His Majesty in Council, that is to say, from December 15, 1904, and consequently that the application for execution had been made within time ; he doubtless was under the impression that the appeal had been dismissed by an order of His Majesty in Council made in the appeal. The Subordinate Judge dismissed the application on the ground that, the terms as to the payment of the prior mortgage debt imposed by the decree of March 29, 1898, not having been complied with within the extended time, the suit by the terms of that decree had stood dismissed. The attention of the learned judges in the High Court does not appear to have been drawn to the question of limitation ; they dismissed the appeal to their Court on the ground upon which the application had been dismissed by the Subordinate Judge.

It appears to their Lordships that the application of October 2, 1907, was made after the period of limitation prescribed for such an application by art. 179 of the Second Schedule of the Indian Limitation Act, 1877, had expired, and that the application should, in accordance with s. 4 of that Act, have been dismissed unless the dismissal of December 15, 1904, for want of prosecution of the appeal to His Majesty in Council was by a final decree or order of His Majesty in Council made in the appeal. There was, however, no order of His Majesty in Council dismissing the appeal, nor was it necessary that any such order should be made in the appeal. Under r. V. of the Order in Council of June 13, 1853, the appellant or his agent not having taken effectual steps for the prosecution of the appeal, the appeal stood dismissed without further order.

As their Lordships hold that the application of October 2, 1907, was barred by limitation, and should on that ground have been dismissed, they do not consider it necessary to express any opinion on the grounds upon which the High Court made the decree which is under appeal. Their Lordships will humbly advise His Majesty that this appeal should be dismissed. The appellant must pay the costs of this appeal.