MAQBUL AHMAD Vs. ONKAR PRATAP NARAIN SINGH

JUDGEMENT

(1.) This is an appeal from a decree of the High Court of Judicature at Allahabad dated 6th May 1929, by which a decree dated 29 April 1924, made by the Subordinate Judge at Basti was affirmed. The decree of the Subordinate Judge had dismissed the application of the decree-holder in a mortgage suit to have the preliminary decree in the suit made absolute. The present appeal is brought by representatives of the decree-holder since deceased, complaining of the decrees to which reference has been made. The facts of the case are shortly these. A preliminary mortgage decree was obtained on 7 May 1917, which was amended in some respects not material to be particularised on 22 May, 1917. There were a number of mortgagors interested in different villages comprised in the mortgage, and some of them appealed to the High Court against the preliminary decree. There were in fact two such appeals. One appeal succeeded, with the result that certain villages were excluded from the decree, and the suit of the mortgagee was dismissed as against those appellants. So far as they were concerned, that was the end of the matter. There was a second appeal, by which certain of the mortgagors sought to exclude other villages from the decree, and that appeal failed. The decrees of the High Court disposing of those appeals were made on 7 June 1920. After the decrees of the High Court dealing with the appeals in the way that has been indicated, the decree-holder proceeded to seek execution under the preliminary decree and between 23 December 1920, and 8 November 1921, he was occupied with those proceedings. It was held that he was not entitled to proceed by way of execution under the preliminary decree, and that all he could do was to take the proper steps to obtain a final decree in the suit. The Additional Subordinate Judge, before whose Court the mortgage suit was instituted and by whom the preliminary decree had been made, was, after the making of the preliminary decree, abolished and his jurisdiction was transferred to the Subordinate Judge at Basti.

(2.) At a later stage another Additional Judge was appointed, with specified jurisdiction, and on 20 June 1923, being the day after the end of the long vacation, the decree-holder made an application for a final decree for sale in the Court of the new Additional Subordinate Judge. His petition was returned to him on 6 August 1923, with an intimation that he had presented it in the wrong Court, that the Additional Subordinate Judge had no jurisdiction, and that the Court of the Subordinate Judge at Basti was the proper Court in which to proceed. Accordingly, on the day on which he got back his petition, he presented it in the Court of the Subordinate Judge at Basti. When that application came on it was objected to upon the ground that it was out of time and barred by Art. 181, Limitation Act, three years since 7 June 1920, having expired. The decree-holder however sought to escape from that defence by alleging that he was entitled to the exclusion of three periods in computing the prescribed period. The first period was from 23 December 1920, to 8 November 1921, while he was seeking execution under the preliminary decree which he contended, ought to be excluded in computing the prescribed period under the provisions of S. 14, Limitation Act. The second period was from 20 May 1923, to 19 June 1923, being the period of the long vacation, which he claimed should have been excluded under the provisions of S. 4, Limitation Act. The third period was from 20 June 1923, to 6 August 1923, being the period between the date of the application to the Additional Subordinate Judge and the presentation of the petition to the Subordinate-Judge. That he urged should be excluded by virtue of S.14, Lim. Act.

(3.) The Courts in India have determined the matter against the appellants, the decree- holder's representatives, holding, that the period during which execution proceedings were proceeding cannot be excluded from the calculation under S. 14, and that though the period from 20 June 1923 to 6 August 1923 ought to be allowed no allowance should be made in respect of the period which represents the long vacation, namely from 20 May 1923 to 19th June 1923. The result was that the application on 6 August 1923 was held to be out of time and barred by Art. 181. The appellants before their Lordships' Board by their counsel have presented five propositions : firstly, that the period during which the execution proceedings were pending should be excluded; secondly, that the vacation period should be excluded : thirdly, that the period up to 6 August which has in fact been allowed to the decree-holder was properly allowed to him; fourthly, that the application was in fact made to the proper Court on 20 June 1923 and that the Additional Subordinate Judge was the proper Judge to deal with it; and, lastly, that the Court had a general judicial discretion, outside the Limitation Act, to relieve a suitor from the provisions of the Act in a case where hardship is established. It will be convenient to call attention to the provisions of the relevant sections of the Limitation Act. They are Ss.3, 4 and 14 (2). By S.3 it is provided : " Subject to the provisions contained in Ss. 4 to 25 inclusive, every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by the first schedule, shall be dismissed, although limitation has not been set up as a defence."