TaxTMI 
TaxTMI 
1932 (4) TMI 12
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....uted a mortgage of the properties in their favour. Amongst the mortgagees were Nagendra Nath Dey and Pulin Behari Dey, who are the appellants before this Board, and Madan Mohan and his son, who are respondents Nos. 24 and 27 respectively. The position at that date was that some of the co-sharers were mortgagees and all the co-sharers were mortgagors. 3. In 1907, after the shares of the several co-sharers in the partition suit had been alloted to them and the receiver discharged, Madan Mohan and his son instituted the suit out of which the present appeal arises in the Court of the Subordinate Judge of Hooghly to enforce the mortgage. In this suit Madan Mohan claimed that the appellants (defendants Nos. 11 and 12) had assigned their intere....
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....e again claimed that the appellants had assigned their interest in the mortgage to him, and prayed that an order should be made to that effect On June 24, 1920, the Subordinate Judge delivered his judgment disallowing Madan Mohan's claim, and a final decree was passed for the sale of the mortgaged properties that had come to the share of the remaining six judgment-debtors. The decree was drawn up on August 2, 1920, but properly dated as of June 24 It contained a declaration, in conformity with the judgment, that the appellants were entitled to payment of the above-mentioned sum of Rs. 14,615-15-3 out of the proceeds of the sale of the properties. 7. On August 27,1920, Madan Mohan presented an application to the High Court purporting ....
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....riod application. limitation. begins to run. __________________________________________________________ For the execution Three years ... 1. The date of the decree of a decreeor order or order; or of any Civil Court not provided for by 2. (where there has been article 183 or by an appeal) the date of section 48 of the Code ....
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.... the judgment-debtors, were parties; and (3) that it must also be one in which the whole decree was imperilled. 13. In their Lordships' opinion there is no force in the first of these contentions. There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent. The 1920 appeal was admitted and was heard in due course, and a decree was made upon it. 14. The second and third contentions have been the subject of much difference of opinion in India, In....
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....limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorney path of execution, which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes....