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TMI Blog1932 (4) TMI 12X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 interest in the mortgage to him. The Subordinate Judge upheld his claim, and after ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 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 to be an appeal from the order of the Subordinate Judge of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... _ 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 the final decree or order of Civil Procedure, of the Appellate Court. 1908. _________________________________________________________________ 11. If the three years are to be calculated, as the respondents contend, from the date of the decree of the Subordinate Judge, viz. June 24, 1920, the application was manifestly out of time; it was within time if the critical date is that of the decree of the High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decree was made upon it. 14. The second and third contentions have been the subject of much difference of opinion in India, In Mashiat-un-nissa v. Rani (1889) I.L.R. 13 All, 3, F. B. three of the Judges in the Full Court took one view, and two the other, In Gopal Chunder Manna v. Gosain Das Kalay (1898) I.L.R. 25 Cal. 591, F. B. a Calcutta Full Bench followed the Allahabad minority, though drawing a distinction between cases of joint and of several decrees. Subsequently further differences of opinion manifested themselves even in the Calcutta Court; see Christiana Sens Law v. Benara-shi Proshad Chowdhury (1914) 19 C.W.N. 287 (upon which the judgment of the High Court in the present case was based); and Satish Chandra Chaudhwri v. Giri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 into Court, But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of Juno 24, 1920, time only ran against the appellants from August 24, 1922, the date of the appellate Court's decree. They are, therefore, in agreement upon this point with the Subordinate Judge, and they think that the order passed by him on August 4, 1924, was right. 16. Their Lordships will accordingly humbly advise His Majesty that this appeal should be al ..... X X X X Extracts X X X X X X X X Extracts X X X X
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