HEMENDRA MOHAN KHASHNABIS Vs. NORESH CHANDRA BHATTACHARJEE

JUDGEMENT

(1.) This is an appeal by the plaintiff from an order in a mortgage suit. The District Judge has dismissed, as barred by limitation,an application mads by the plaintiff under sub Rule 2 of Rule 5 of Order XXXIV of the Civil Procedure Code. The plaintiff was the third mortgagee, and on the 31st January 1911 obtained a preliminary decree under Rule 4. That decree fixed the 31st July 1911 as the last date for payment of the judgment debt by the mortgagor. The payment was not made. The present application was thereafter made on the 2nd October 1915. the respondent, who is the second mortgagee, objected to the application on the ground of limitation. The Court of first instance overruled this contention. Upon appeal, the District Judge has come to a 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 that consequently the application should have been made within three years from the 31st July 1911. The plaintiff contends, however, that his right to make the application was suspended temporarily by reason of events beyond his control.

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