1926 JTR(SC) 53
1927 AIR(PC) 25 ; 1926 54 LawReportsInd.App. 52 ; 1927 25 AllLJ 78 ; 1927 25 LW 722 ; 1927 29 BomLR 782 ; 1927 31 CWN 444
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD PHILLIMORE, LORD SINHA, LORD BLANESBURGH, AND LORD SALVESEN.
FITZHOLMES - Appellant
Versus
BANK OF UPPER INDIA, LIMITED - Respondents
On appeal from the High Court at Lahore.
Decided On : Nov. 26. 1926.
In mortgage suits, if a preliminary decree is appealed, the three-year limitation period for applying for a final decree runs from the date of the appellate court's decree, not from the expiry of the payment period fixed in the preliminary decree.
Act
Referred
:LIMITATION ACT
: Art.181, Sch.i
(A) Indian Limitation Act, 1908 - Art. 181 - Order xxxiv, r. 5 - Preliminary mortgage decree - Application for final decree - Limitation period - Where there has been an appeal from a preliminary mortgage decree and the Appellate Court has not extended the time for payment, the period of three years within which an application for a final decree must be made runs from the date of the decree of the Appellate Court, not from the expiry of the time for payment fixed by the preliminary decree.
(B) Jurisdiction of Appellate Court - Limitation Act - The jurisdiction of the Appellate Court is not touched by the Limitation Act; when an appeal is filed, it stands until it is heard, unless dismissed for want of time or by a specific order. A judgment of the Appellate Court, even if it affirms the decree of the court of first instance, serves as the date from which the limitation period for the final decree is calculated.
Facts of the case:
Preliminary mortgage decrees were passed fixing a sum to be paid within six months. The mortgagors appealed, and the proceedings were delayed such that the Appellate Court dismissed the appeals several years later. Following the dismissal, the mortgagee applied for final decrees for sale. The mortgagors contended that under Art. 181 of the Indian Limitation Act, 1908, the original decrees had become barred by limitation because more than three years had elapsed before the Appellate Court delivered its judgment, and thus the decrees could not be revived for sale.
Findings of Court:
The court found that the application for final decrees was made in plenty of time. The Appellate Court had the jurisdiction to determine the appeal regardless of the time elapsed, and the resulting decree affirmed the original order, thereby establishing the date from which the limitation period for the final decree began to run.
Issues: Whether the application for final mortgage decrees was barred by limitation under Art. 181 of the Indian Limitation Act, 1908, on the ground that the three-year period had expired before the Appellate Court passed its judgment.
Ratio Decidendi: The limitation period for applying for a final decree under Order xxxiv, r. 5, runs from the date of the decree of the Appellate Court if the preliminary decree was appealed and the Appellate Court did not extend the time for payment. The pending appeal preserves the action, and the subsequent appellate decree resets the timeline for the application for a final decree.
Result: Appeals dismissed with costs.
(B) Jurisdiction of Appellate Court - Limitation Act - The jurisdiction of the Appellate Court is not touched by the Limitation Act; when an appeal is filed, it stands until it is heard, unless dismissed for want of time or by a specific order. A judgment of the Appellate Court, even if it affirms the decree of the court of first instance, serves as the date from which the limitation period for the final decree is calculated.
Facts of the case:
Preliminary mortgage decrees were passed fixing a sum to be paid within six months. The mortgagors appealed, and the proceedings were delayed such that the Appellate Court dismissed the appeals several years later. Following the dismissal, the mortgagee applied for final decrees for sale. The mortgagors contended that under Art. 181 of the Indian Limitation Act, 1908, the original decrees had become barred by limitation because more than three years had elapsed before the Appellate Court delivered its judgment, and thus the decrees could not be revived for sale.
Findings of Court:
The court found that the application for final decrees was made in plenty of time. The Appellate Court had the jurisdiction to determine the appeal regardless of the time elapsed, and the resulting decree affirmed the original order, thereby establishing the date from which the limitation period for the final decree began to run.
Issues: Whether the application for final mortgage decrees was barred by limitation under Art. 181 of the Indian Limitation Act, 1908, on the ground that the three-year period had expired before the Appellate Court passed its judgment.
Ratio Decidendi: The limitation period for applying for a final decree under Order xxxiv, r. 5, runs from the date of the decree of the Appellate Court if the preliminary decree was appealed and the Appellate Court did not extend the time for payment. The pending appeal preserves the action, and the subsequent appellate decree resets the timeline for the application for a final decree.
Result: Appeals dismissed with costs.
Limitation - Established that the three-year limitation period for applying for a final mortgage decree runs from the date of the Appellate Court's decree, not from the expiry of the time for payment fixed by the preliminary decree.
Solicitor for appellants:H. S. L. Polak. Solicitors for respondents: T. L. Wilson & Co.
Judgement
Consolidated Appeal (No. 4 of 1926) from two decrees of the High Court (January 29, 1924) affirming two decrees of the District Judge at Ambala (October 20, 1923).
The only question arising in the appeal was whether applications by the respondent bank for final mortgage decrees under Order xxxiv., r. 5, were barred by limitation under art.181 of Sch. I. of the Indian Limitation Act, 1908. Both Courts in India held that the implications were not out of J time under the article.
The material facts, and the ground upon which it was contended for the appellants that one of the
Law. Rep. 54 Ind. App. 52 ( 1926- 1927)
Fitzholmes V. Bank of Upper India 171
applications was out of time notwithstanding the decision of the Board in Jowad Hussain v. Gentian Singh (L.R. 531. A. 197.), appear from the judgment of the Judicial Committee.
1926. Nov. 9. Dunne K.C. and Dube for the appellants.
Sir G. Lowndes K.C., and Wallach for the respondent bank.
The judgment of their Lordships was delivered by
LORD PHILLIMORE. Their Lordships need not trouble counsel for the respondents.
The cases under appeal were two, one against husband and wife, and one against wife only, in respect of mortgages to the respondent bank. Decrees fixing a figure to be paid and giving six months within which it should be paid were passed in both suits, on August 21, 1919, in one, and on December 17, 1919, in the other. The mortgagors appealed and somehow or other the proceedings got so delayed that the judgment of the High Court in both of the suits was not passed till March 7, 1923, when the High Court dismissed both appeals. On March 13 the bank applied for final decrees. Objection was taken by the mortgagors that six months had not expired since the decree of the High Court, and that objection prevailed. Thereupon the bank waited for six months and a little more and on October 10 applied for final decrees for sale, and an order was made on October 20. Thereupon the mortgagors appealed to the High Court, on the ground that, under art. 181 of Sch. I. of the Limitation Act, the decrees of the Court of first instance were dead. They passed by the decrees of the High Court and contended that there could now be no sale. The District Judge dismissed this application and the High Court agreed with him; but the mortgagors, not being content, have appealed to this Board.
It has now been definitely settled, in the case of Jowad Hussain v. Gendan Singh
(L. R. 53 I. A. 107.), that " Where there has been an appeal from a preliminary mortgage decree under Order xxxiv., r. 4 (1.), and the Appellate Court has not extended the time for payment, the period of three years within which, under the Indian Limitation Act, 1908, Sch. I., art. 181, an application for a final decree under Order xxxiv, r. 5 (2.), must be made runs from the date of the decree of the Appellate Court, not from the expiry of the time for payment fixed by the preliminary decree."
Therefore, in the first instance, it would seem quite simple that the mortgagors point was a bad one. But a very ingenious suggestion was made with regard to the earlier of the two decrees. It was said that before the date of the High Court decision the three years and six months had passed and therefore that decree was dead before the High Court gave its decision and could not be revived, so no order for sale could be made. The point does not seem to have been taken in the Courts below, but it is open to the appellants to raise it.
The answer is first, that no attempt has been made to discharge the order of the High Court. It stands unappealed from. The answer is next, that the jurisdiction of the High Court is not touched by the Limitation Act, and when an appellant appeals to the High Court, unless there is some rule dismissing the appeal for want of time or an order is procured dismissing it, his appeal stands till it is heard. Therefore the High Court had a right to determine the appeal, and when the judgment of the High Court is given, though in form it affirms the decree of the judge of first instance, it works out at a different figure, because the amount of interest is not at the same figure that judgment was passed for in the first instance. Therefore the High Court having jurisdiction to pass its decrees, those decrees were sought to be enforced in plenty of time. The mortgagors were right in their objection that these decrees should not be enforced till six months had elapsed from the judgment of
Law. Rep. 54 Ind. App. 52 ( 1926- 1927)
Fitzholmes V. Bank of Upper India 172
the High Court, and it is sufficiently cynical that they should now turn round and take a point which one is glad to think entirely fails
These appeals will be dismissed with costs, and their Lordships will humbly advise His Majesty accordingly.