NARAIN DAS DUTT Vs. BANKU BEHARI CHATTOPADHAYA

JUDGEMENT

(1.) This appeal arises out of an application for the execution of a mortgage decree and is from the order of the Subordinate Judge of Hooghly, dated the 22nd August, 1921 directing that execution should proceed. The appellants are the sons and representatives of the mortgagor- defendant in the suit to which the decree was made. It will be convenient to distinguish the plaintiff in that suit as the first mortgagee and the three several puisne mortgagees who were also impleaded, as the second, third and fourth mortgagees respectively. The principal respondent, Banku Behary Chattopadhya, is the fourth mortgage, a6 whose instance the learned Subordinate Judge made his order and to whom I shall refer as the respondent. The other respondents are formal parties representing the other mortgagees whose claims have been satisfied.

(2.) The question for decision whether the application for execution was in time is governed by Art. 183 of the Schedule to the Limitation Act of 1908. The material facts are as follows.

(3.) Apparently two properties had been mortgaged to the first mortgagee and one of these and thirty-two others to the second mortgagee and again to the third mortgagee while all thirty-four properties had been mortgaged to the respondent together with certain mortgage rights belonging to the mortgagor. A doubt was suggested whether the respondent's security did not also comprise one or two additional properties but the point is of little importance.