1907 (7) TMI 1 - HC - Indian Laws

Summary

Issues Involved:
1. Limitation period for foreclosure of a mortgage by conditional sale.
2. Applicability of Article 132 vs. Article 147 of the Indian Limitation Act.
3. Authority of Section 4 of the Limitation Act in appellate proceedings.
4. Interaction between Section 4 of the Limitation Act and Section 542 of the Civil Procedure Code.
5. Discretion of the appellate court in allowing new grounds of appeal.

Detailed Analysis:

1. Limitation Period for Foreclosure of a Mortgage by Conditional Sale:
The suit in question was for the foreclosure of a mortgage by conditional sale, executed on January 20, 1887, with the due date on January 24, 1891. The suit was instituted on April 23, 1904, after a period of 13 years. According to the ruling in Girwar Singh v. Thakur Narain Singh I.L.R. (1887) Calc. 730, the period of limitation prescribed for such a suit is 12 years as provided in Article 132 of the second schedule to the Indian Limitation Act. Consequently, the suit was deemed barred by limitation.

2. Applicability of Article 132 vs. Article 147 of the Indian Limitation Act:
There was a conflict between the rulings of the Calcutta High Court and the Bombay High Court regarding the applicable article of the Limitation Act. The Bombay High Court ruled that Article 147 applies to such suits, which would render the suit within the limitation period. However, the Calcutta High Court adhered to its Full Bench ruling in Girwar Singh v. Thakur Narain Singh, applying Article 132 with a 12-year limitation period, thereby barring the suit.

3. Authority of Section 4 of the Limitation Act in Appellate Proceedings:
Section 4 of the Limitation Act mandates that courts must give effect to the rules of limitation even if the limitation is not set up as a defense. The court felt constrained to allow the limitation plea at a very late stage, emphasizing the mandatory nature of Section 4. The court concluded that the suit was barred by limitation and dismissed it accordingly.

4. Interaction between Section 4 of the Limitation Act and Section 542 of the Civil Procedure Code:
The court considered whether Section 4 of the Limitation Act is controlled by Section 542 of the Civil Procedure Code, which allows appellate courts to refuse new grounds of appeal. It was concluded that even if Section 542 allowed the court to refuse the plea of limitation, the mandatory nature of Section 4 necessitated its application. The court decided that since the limitation issue was apparent on the face of the plaint, it should be addressed without further factual inquiry.

5. Discretion of the Appellate Court in Allowing New Grounds of Appeal:
The court deliberated on whether it should exercise its discretion to allow the limitation plea, which was not raised in the lower courts or the memorandum of appeal. It was noted that the plea of limitation must be considered if it arises on the face of the pleadings or the facts found. The court held that Section 4 of the Limitation Act applies to appellate courts, subject to the restriction that the limitation issue must be evident from the record. Consequently, the court decided to entertain and allow the limitation plea, decreeing the appeal and dismissing the suit without costs.

Separate Judgments:
- J.G. Wooddroffe, J. disagreed with the majority, arguing that Section 4 of the Limitation Act is controlled by Section 542 of the Civil Procedure Code and that the discretion should be exercised to disallow the limitation plea due to its late stage introduction.
- Mookerjee, J. emphasized that the plea of limitation must be considered if it is evident from the pleadings or facts found. He agreed with the majority that the suit was barred by limitation under Article 132 and supported the dismissal of the suit.
- Charles Peter Caspersz, J. and Saiyid Sharfuddin, J. concurred with the majority opinion, agreeing that the suit was barred by limitation and should be dismissed.

Conclusion:
The High Court of Calcutta dismissed the suit for foreclosure of a mortgage by conditional sale as barred by limitation under Article 132 of the Indian Limitation Act. The court held that Section 4 of the Limitation Act mandates the consideration of limitation issues even if not raised earlier, and this mandatory provision overrode any discretionary power under Section 542 of the Civil Procedure Code.