1929 (2) TMI 4 - HC - Indian Laws

Summary

Issues Involved:
1. Whether the application for a personal decree against the mortgagor is barred by limitation.
2. Which Limitation Act (Act XV of 1877 or Act IX of 1908) should be applied to the present application.
3. Whether the Limitation Act of 1908 affects any vested right or is merely a procedural law.

Issue-wise Detailed Analysis:

1. Whether the application for a personal decree against the mortgagor is barred by limitation:

The original defendant mortgagor contends that the application for a personal decree made on 23rd September 1924 is barred by limitation. The mortgage was executed in 1902, and the due date for payment was 12th April 1904. A preliminary decree was passed on 30th November 1906, and an order absolute was made on 7th January 1907. The mortgaged property was sold on 16th September 1908, but a considerable sum remained due. The mortgagee attained majority on 23rd September 1923 and applied for a personal decree within a year. The Subordinate Judge overruled the objection and made a decree against the mortgagor personally. The appellant argues that the right to apply accrued in September 1908, and thus the application in 1924 is barred by limitation under the current law.

2. Which Limitation Act (Act XV of 1877 or Act IX of 1908) should be applied to the present application:

The appellant argues that the Limitation Act of 1908 should be applied as it was in force when the application was made. The respondent contends that the Limitation Act of 1877 should apply, allowing the application to be made within three years after the disability of minority ceased. The court examined the changes in the Limitation Act, noting that the new Act replaced the phrase "make any application" with "make an application for the execution of a decree," thus not extending the privilege of making applications post-minority for personal decrees under Order XXXIV, Rule 6 of the Code of Civil Procedure.

3. Whether the Limitation Act of 1908 affects any vested right or is merely a procedural law:

The court discussed whether the Limitation Act of 1908 affects vested rights or merely procedural aspects. It was argued that statutes of limitation are procedural and generally apply from the date fixed in the statute, governing all matters brought before the court after its commencement. The court referenced several cases, including Queen v. Leeds & Bradford Ry. Co. and Towler v. Chatterton, to illustrate the principle that procedural statutes can have retrospective application unless they infringe on vested rights. The court concluded that the Limitation Act of 1908, by altering the period within which an application could be made, did not take away any vested rights but merely affected the procedure.

Judgment:

The court held that the Limitation Act of 1908 should apply to the present case. The mortgagee had sufficient time (two years and nine months) to make the application under the new law, and thus, the application made in 1924 was barred by limitation. The appeal was allowed, the judgment and decree of the Subordinate Judge were set aside, and the application of the mortgagee was dismissed with costs in both courts.