KHONDKAR MAHOMED SALEH Vs. CHANDRA KUMAR MUKERJI

JUDGEMENT

(1.) This is an appeal by the original defendant mortgagor in a suit brought on a mortgage which was executed in 1902 in favour of the father of the present respondent one Aswini Kumar Mukerji. The due date under the bond for payment of the mortgage money was 12th April 1904. The original mortgagee died in December 1905, leaving his son the present respondent his only heir who was then a minor. A suit was brought on the mortgage in 1906 and a preliminary decree was passed on 30 November 1906. An order absolute was made under the repealed provisions of the Transfer of Property Act on 7 January 1907. In the suit the plaintiff who was represented by his guardian ad litem prayed, amongst other things, that in case the entire amount of the mortgage be not fully satisfied by the sale of the mortgaged properties, then the balance might be realized from the defendant's other moveables and immovables as well as from his person. According to the usual practice then prevailing, the decree was made for realization of the mortgage money in the first instance out of the mortgaged property leaving it to the mortgagee to apply for a further decree against the person of the mortgagor if by the sale of the mortgaged property the entire money was not realized. The mortgaged property was sold on 16 September 1908, and it was purchased by the mortgagee for Rs. 831. The mortgage decree including all costs was for Rs. 6,666 odd and therefore a considerable sum remained due as balance of the mortgage money. The mortgagee attained majority oh 23 September 1923 and an application was made under Civil P.C. Order 34, Rule 6, on 23 September 1924 for a personal decree against the mortgagor. The mortgagor pleaded that this application was barred by limitation. The learned Subordinate Judge has overruled that objection and made a decree against the mortgagor personally for the balance of the money due together with interest which amounted to Rs. 13,284-6-9. The defendant mortgagor has appealed against that decree and his contention is that the plaintiff's application should be dismissed on the ground that it was barred by limitation.

(2.) This question raises an interesting point of law which does not seem to have been directly decided by any reported case. The point arises in this way. Cinder the Limitation Act 15 of 1877 the plaintiff would be entitled to maintain his application for a personal decree after the attainment of majority within the period of limitation prescribed therein. Under Section 7 of that Act a minor might make any application within the prescribed period after the disability of minority had ceased. The new Limitation Act (Act 9 of 1908) was passed in August 1908 and it came into operation on 1 January 1909. Under Section 6 of that Act, which replaced Section 7, Act 15 of 1877, instead of the words "make any application" the words "make an application for the execution of a decree" were substituted, the result of which is that under the Limitation Act now in force the application for a personal decree against the mortgagor under Civil P.C. Order 34 Rule 6 would not fall within the provisions of Section 6; or in other words, the privilege of making the application after the disability of minority has ceased was taken away and a minor must now make such an application within the period prescribed under Schedule 1, Lim. Act. It has been held by a Full Bench of this Court in the case of Pell v. Gregory that such an application fall within Art. 181, Schedule 1, Lim. Act (9 of 1908) and therefore, the period of limitation is three years from the time when the right to apply accrued. The contention of the appellant is that in this case the right to apply accrued in September 1908. The law of limitation now in fore should, therefore, be held that the application made in September 1924 is barred by the rule of limitation. It is contended, on the other hand, on behalf of the respondent, as was held by the learned Subordinate Judge, that the Limitation Act (15 of 1877) should apply to this case and although the right to make an application accrued in September 1908 as the mortgagee was under the disability of minority till 23 September 1923, he was entitled to make the application within three years from that date. And as the application was made within that period, it was within time and the learned Subordinate Judge was right in making she decree.

(3.) The question, therefore, is what law of limitation should be applied to the present application. It is argued on behalf of the appellant that the rule of limitation should be applied according to the law in force at the time when the application was made and the learned advocate relies upon the case of Soni Lal V/s. Kanhaiya Lal [1913] 35 All. 227 in support of his proposition. He contends that the Subordinate Judge was wrong in holding that the Act of 1908 affected any vested right of the plaintiff and, therefore, his conclusion that the Limitation Act of 1877 was applicable is erroneous. Reliance had been placed with regard to the rule of construction as to the retrospective operation of statutes to the cases of The Queen V/s. Leeds and Bradford Ry. Co. [1852] 18 Q.B. 343 and Towler V/s. Chatterton [1829] 6 Bing. 258, in support of the contention that the Act of 1908 should be given what is called retrospective operation." In the case of Leeds and Bradford Ry. Co. [1852] 18 Q.B. 343 an Act was passed which came into operation six weeks after its passing by which it was enacted that awards for compensation made under the Land Clauses Act must be applied for and obtained within six months from the time when the damage was done to any property. The question arose whether the Act had a retrospective operation and was to apply to cases of damage done before its passing. The Court decided that it was retrospective, and Lord Campbell, C.J., in giving judgment observed: If the Act had come into operation immediately after the time of its being passed, the hardship would have been so great that we might have inferred an intention on the part of the legislature not to give it a retrospective operation, but when we see that it contains a provision suspending its operation for six weeks, that must be taken as an intimation that the legislature has provided that as the period of time within which proceedings respecting antecedent damages or injuries might be taken before the proper tribunal... A certain time was allowed before the Act was to come into operation, and that removes all difficulty. The case of Towler V/s. Chatterton [1829] 6 Bing. 258 is strongly in point.