1926 (6) TMI 3 - HC - Indian Laws

Time for Final Decree in Mortgage Suit: Appeal Must Target Entire Decree

The Privy Council affirmed that the time to apply for a final decree in a mortgage suit runs from the decree of the appellate court, not the original ... - Issues: Calculation of time for applying for a final decree under a mortgage bond; Whether the time runs from the expiry of the time fixed by the original preliminary decree or from the date when the appeal against that decree was dismissed.Analysis:1. The case involved the plaintiffs, mortgagees under a registered mortgage bond, claiming a sum due under the mortgage. The defendant disputed the amount due, arguing that the plaintiffs had not credited him for two sums he had paid, which were initially endorsed on the bond but later erased by the plaintiffs.2. The Subordinate Judge granted a preliminary decree for the sum due, with proper interest computation, after allowing credit for the disputed sums. The mortgagees appealed the decree, which was dismissed in May 1917. The grace period for payment expired on August 22, 1915, as per the original decree.3. An application for a final decree was made in February 1919, but the defendants opposed it as time-barred under Article 181 of the Limitation Act, 1908, which sets a three-year limitation for such applications from the accrual of the right to apply.4. The dispute centered on whether the three-year period should be calculated from the time fixed for payment by the original decree or from the date of the appeal dismissal. The Subordinate Judge sided with the plaintiffs, and the Court of Appeal upheld this decision, leading to the current appeal.5. The primary issue for the Privy Council was determining when the time to apply for a final decree starts running - from the original decree's payment deadline or from the appeal dismissal date. The appellant's argument that the appeal was against specific items in the decree, not the decree itself, was dismissed as a misunderstanding.6. Referring to legal precedents, the Privy Council emphasized that an appeal must be against the decree as a whole, even if specific items are contested. The final decree in a mortgage suit is based on the decree of the appellate court of final jurisdiction, not the original decree.7. Previous judgments by Banerji J. and Tudball J. supported the view that the final decree in a mortgage suit is based on the decree of the appellate court, not the original decree. The Privy Council concurred with this interpretation, advising to dismiss the appeal with costs.8. The decision clarified the rule for applying for final decrees in mortgage suits, emphasizing the importance of the appellate court's decree as the final decree in the case. The judgment highlighted the necessity of a conclusive preliminary decree between the parties before a final decree can be made.9. Ultimately, the Privy Council upheld the lower court's decision, affirming that the time to apply for a final decree in a mortgage suit runs from the decree of the appellate court, not the original decree, and advised to dismiss the appeal with costs.