Authored By : Asutosh Mookerjee, Ernest Edward Fletcher

Asutosh Mookerjee, Actg., C.J.

1. This is an appeal by the plaintiff from an order in amortgage suit. The District Judge has dismissed, as barred by limitation, anapplication made by the plaintiff under sub Rule 2 of Rule 5 of Order XXXIV ofthe Civil Procedure Code. The plaintiff was the third mortgagee, and on the31st January 1911 obtained a preliminary decree under Rule 4. That decree fixedthe 31st July 1911 as the last date for payment of the judgment debt by themortgagor. The payment was not made. The present application was thereaftermade on the 2nd October 1915. the respondent, who is the second mortgagee,objected to the application on the ground of limitation. The Court of firstinstance overruled this contention. Upon appeal, the District Judge has come toa different conclusion.

2. We shall assume for our present purpose that Article(181) of the Schedule to the Limitation Act applies to this case, and thatconsequently the application should have been made within three years from the31st July 1911. The plaintiff contends, however, that his right to make theapplication was suspended temporarily by reason of events beyond his control.

3. It appears that the 2nd mortgagee instituted a suit toenforce his security on the 12th April 1910. That litigation was ultimatelybrought up to this Court and a decree was made in favour of the secondmortgagee on the basis of a judgment delivered on the 10th March 1914. In thatcase, this Court expressed the opinion that the third mortgagee could not sellthe property which was common to the two mortgages before he hid paid up thesecond mortgagee. It is not necessary for us to decide the question, whetherthis expression of opinion was or was not wall founded on principle: because,whether right or wrong, the remit to the parties is identical.

4. The third mortgages now contends that he was misled bythis order and could not mike the application under Rule 5, Sub-rule 2, ofOrder XXXIV, till the second mortgagee had been redeemed. A payment was made byhim to the second mortgagee on the 22nd May 1915. There was a dispute as towhether the entire amount due had been paid, and it was not till the 7th July1917 that the balance claimed by the second mortgagee was paid by the thirdmortgagee under protest. It is thus plain that the third mortgagee could notmake an application to have his decree made absolute between the 10th March1914 and the 22nd May 1915. It may also be pointed out that the sum now due tohim could not have been determined till the sum payable to the second mortgageefor redemption had been settled. In these circumstances, we are of opinion thathis right to apply for order absolute was temporarily suspended and was notrevived till the 22nd May 1915. The principle applicable in contingencies ofthis character was expounded by Lord Eldon in Pulteney v. Warren (1801) 6 Ves.73 : 31 E.R. 944 : 5 R.R 226: "If there be a principle upon which Courtsof Justice ought to act without scruple, it is this; to relieve parties againstthat injustice occasioned by its own acts or oversights at the instance of theparty, against whom the relief is sought. That proposition is broadly laid downin some of the cases," This view was subsequently approved by the House ofLords in Mast India Company v. Campion (1837) 11 Blig. (N.S.) 158 : 4 Clause& F. 616 : 7 E.R. 234. These cases were followed by this Court in LakhanChunder Sen v. Madhusudan Sen 35 C. 209 : 7 C.L.J. 59 : 12 C.W.N. 326 : 3M.L.T. 90 (P.C.) where the question arose as to the applicability of a Rule oflimitation, The decision of this Court was ultimately approved by the JudicialCommittee; Nrityamoni Dassi v. Lakhan Chunder Sen 33 Ind. Cas. 452 : 43 C. 630: 20 C.W.N. 522 : 30 M.L.J. 529 : (1916) 1 M.W.N. 332 : 3 L.W. 471 : 18 Bom.L.R. 418 : 24 C.L.J. 1 : 20 M.L.T. 10 (P.C.). We may point out that thedoctrine in question has been repeatedly applied by the Judicial Committee. Seefor instance the cases of Ranee Sarno Moyee v. Shooshee Mokhee Burmonia 12M.I.A. 244 : 11 W.R. 5 (P.C.) : 2 B.L.R. 10 (P.C.) : 2 Suth. P.C.J. 173 : 20E.R. 831 : 2 Sar. P.C.J. 424; Prannath Roy Chowdhury v. Rookea Begum 7 M.I.A.323 : 4 W.R. 37 (P.C.) : 19 E.R. 331 : 1 Suth. P.C.J. 367 : 1 Sar. P.C.J. 692.In the case before us, we are of opinion that the view taken by the Court offirst instance was correct and its order should not have been reversed by theDistrict Judge.

5. The result is that this appeal is allowed, the decree ofthe District Judge set aside and that of the Court of first instance restoredwith costs throughout,

Ernest Edward Fletcher, J.

6. I agree.

.

Hemendra Mohan Khashnabisvs. Noresh Chandra Bhattacharjee and Ors. (25.05.1920 - CALHC)