AMLOOK CHAND PARRACK Vs. SARAT CHUNDER MUKERJEE

JUDGEMENT

(1.) The appellant is a mortgagee, and the mortgage under which he claims is dated the 25th January 1886. On the 16th of December 1886, he obtained a decree on his mortgage by consent. On the 3rd of July 1909 he made the application out of which the present appeal arises: and, by that application,, he asks that he may be at liberty to-add Upendra Lal Bose as a party defendant to the .suit, and.that thereafter he may be at liberty to proceed to sell, pursuant to the decree made in this suit on the 16th December 1886, an undivided quarter share of the defendant Sarat Chandra Mukerjee of, and in premises No. 30 formerly No. 49, Clive Street, Calcutta, and Nos. 1, 2 and 3 Bishoo Babu s Lane, Kidderpore, and the family dwelling house at Kidderpore, and that for .the purpose of such sale all necessary directions may be given to the Registrar. Mr. U.L. Bose s position is that on the 1st December 1903, he became a purchaser of the Clive Street property, and in his affidavit he states that the is a bona fide purchaser for full market value, that he had no notice of the plaintiff s claim, that he had laid out large sums of money with borrowed funds in the improvement of the property, and that other persons besides himself have got an interest therein, and that it would be extremely hard if after the lapse of 23 years the plaintiff is allowed to assert a claim which he had given up years ago.

(2.) The case was heard by Mr. Justice Fletcher, the parties before him being the applicant, the mortgagee, on the one side, and on the other the mortgagor and Mr. U.L. Bose who resisted the application with success. From the adverse judgment of Mr. Justice Fletcher the present appeal has been preferred; and, I will, at the outset, deal with a point taken on behalf of Mr. U.L. Bose. His name does not appear as a respondent, and therefore, it is maintained, as against him the judgment of Mr. Justice Fletcher cannot be touched. But it appears that the appellant made every effort, he could, to make Mr. U.L. Bose a party respondent. He may not have proceeded in the most approved manner, still undoubtedly he was anxious to have Mr. U.L. Bose as a respondent. Having failed in his endeavour, because he could not persuade the Court Officers to grant the necessary process, he has applied under Order XLI, Rule 21, that Mr. U.L. Bose may be added as a respondent here. It has been suggested that the Court has not power to do that, inasmuch as the time for, appealing has elapsed; but it is for the Court in its discretion to determine in each case whether or not it will, make an order under Order XLI, Rule 20. I have indicated the circumstances under which it became necessary to make the application in this case, and I think that the appellant is entitled to ask that Mr. U.L. Bose should be made a party, and that there should be an order to that effect. Therefore, I propose to deal with this appeal on the footing of Mr. U.L. Bose. being, a respondent before us.

(3.) It is to be noticed that the decree on the mortgage was made so far back as the 16th December 1886, and that the present application was made in 1909. Those dates have naturally prompted the respondents to raise a plea of limitation. The question that we have to decide is whether the applicant is right when he contends that he is, so far as this application goes, free from the law of limitation.