CHAUDHRI ABDUL MAJID Vs. JAWAHIR LAL

JUDGEMENT

(1.) In this case the relevant facts necessary and sufficient to determine their Lordships decision on the appeal are very simple and are undisputed.

(2.) The appellant is in the position of mortgagor and the respondents of mortgagees under a mortgage dated 3rd September 1868. In 1889 a suit was commenced before the Subordinate judge of Allahabad to enforce that mortgage, and on 12th May 1890 a decree was passed by him for the salt: of the property unless payment was made on or before 12th August 1890. An appeal was brought from that decree to the High Court and on 8th April 1893 that appeal was dismissed and the decree of the Subordinate Judge confirmed. The mortgagor obtained leave to appeal to this Board but did not prosecute his appeal, and on 13th May 1901 the appeal was dismissed for want of prosecution.

(3.) The present appeal relates to an application to the Subordinate Judge, dated 1 the June 1909, for an order absolute to sell the mortgaged properties; in other words, for an order directing enforcement of the order nisi which had been confirmed by the decision of the High Court of 8th April 1893. It is not necessary to go into the particulars of this application because their Lordships are of opinion that any such application was barred by the Statute of Limitation, Article 179, at the expiry of three years from the date of the decree, and there fore before the passing of the Code of Civil Procedure of 1908, under which the present proceedings purported to be taken, and their Lordships have no doubt whatever that inasmuch as the right to enforce the decree had once been barred no provisions of the Civil Procedure Code, 1908, operate to revive it.