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TMI Blog1929 (2) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to the usual practice then prevailing, the decree was made for realisation of the mortgage money in the first instance out of the mortgaged property, leaving it to the mortgagee to apply for a further decree against the person of the mortgagor, if by the sale of the mortgaged property the entire money was not realised. The mortgaged property was sold on the 16th September, 1908, and it was purchased by the mortgagee for ₹ 83l. The mortgage-decree including all costs was for ₹ 6,666 odd and, therefore, a considerable sum remained due as balance of the mortgage-money. The mortgagee attained majority on the 23rd September, 1923, and an application was made under Order XXXIV, Rule 6 of the Code of Civil Procedure on the 23rd September, 1924, for a personal decree against the mortgagor. The mortgagor pleaded that this application was barred by limitation. The learned Subordinate Judge has overruled, that objection and made a decree against the mortgagor personally for the balance of the money due together with interest, which amounted to ₹ 13,284-6-9. The defendant mortgagor has appealed against that decree and his contention is that the plaintiff's applicat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication was made within that period, it was within time and the learned Subordinate Judge was right in making the decree. The question, therefore, is what law of limitation should be applied to the present application. 3. It is argued on behalf of the appellant that the rule of limitation should be applied according to the law in force at the time when the application was made and the learned Advocate relies upon the case of Soni Ram v. Kanhaiya Lal 19 Ind. Cas. 291 : 40 I.A. 74 : 35 A. 227 : 17 C.L.J. 488 : 13 M.L.T. 437 : 17 C.W.N. 605 : 11 A.L.J. 389 : (1913) M.W.N. 470 : 15 Bom. L.R. 489 : 25 M.L.J. 131 (P.C.) in support of his proposition. He contends that the Subordinate Judge was wrong in holding that the Act of 1908 affected any vested right of the plaintiff, and, therefore, his conclusion that the Limitation Act of 1877 was applicable is erroneous. Reliance has been placed with regard to the rule of construction as to the retrospective operation of Statutes to the cases of Queen v. Leeds Bradford Ry. Co. (1852) 18 Q.B. 343 : 118 E.R. 129 and Towler v. Chatterton (1829) 6 Bin 258 : 8 L.J.C.P. (O.S.) 30 : 13 E.R. 1280 : 31 R.R. 411 in support of the contention that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in Towler v. Chatterton (1829) 6 Bin 258 : 8 L.J.C.P. 30 : 13 E.R. 1280 : 31 R.R. 411 the learned Baron makes the following observations: Whether the decision in Towler v. Chatterton (1829) 6 Bing. 258 : 8 L.J.C.P. (O.S.) 30 : 13 E.R. 1280 : 31 R.R. 411 was correct, would depend on whether the true meaning of the 10th section was to fix a date before which all actions must be brought, or a date beyond which no parol promise should be sufficient to take a case out of the operation of the Statute of limitations. The Court of Common Pleas adopted the former construction. Neither construction would do injustice by infringing the rule which in general makes all Statutes prospective in their operation, and the Court of Common Pleas may have been right in their view of the Statute; at all events, it is immaterial, in the present case, to discuss that point. In the present case, the question really is whether the Limitation Act (IX of 1908) affects a vested right as to making applications by the alteration made by Section 6 in the previous law contained in Section 7 of Act XV of 1877. It is a settled principle that there is no vested right in procedure or costs. In Wright v. Hale (1860 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andra Chandra 24 Ind. Cas. 37 : 41 C. 1125 : 19 C.L.J. 549 :: 18 C.W.N. 804, decided by a Special Bench of this Court. There, the period of limitation under the Third Schedule of the Bengal Tenancy Act was amended in such a way as to take away the rights of certain persons to bring a suit within the period of limitation prescribed by the Act before the amendment came into operation. The Court observed as follows: Here the plaintiff at the time when the amending Act was passed had vested right of suit, and we see nothing in the Act as amended that demands the construction that the plaintiff was thereby deprived of a right of suit vested in him at the date of the passing of the amending Act. It is not (in our opinion) even a fair reading of Section 184 and the Third Schedule of the Bengal Tenancy Act, as amended, to hold, that it was intended to impose an impossible condition under pain of the forfeiture of a vested right and we can only construe the amendment as not applying to cases where its provisions cannot be obeyed. The law as amended may regulate the procedure in suits in which the plaintiff could comply with its provisions, but cannot (in our opinion) govern suits where suc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... XV of 1877 should apply to the present case. That is, however, a case quite different from the present. There, the plaintiff had brought a suit against an assignee of a, purchaser at an auction sale. Such a suit was not prohibited under the Civil Procedure Code of 1882. The plaintiff had a subsisting right to sue such an assignee. Under Section 66 of the Code of Civil Procedure of 1908, such a suit is not maintainable. The learned Judges held that Section 66 of the Code had no retrospective operation, as it actually took away a right of suit which is a vested right. Reliance has also been placed on the case of Fazil Karim v. Annada Mohan Ray 11 Ind. Cas. 401 : 15 C.W.N. 845. There, a judgment-debtor made an application for setting aside an auction sale. The sale was held in 1903, when the old Limitation Act (XV of 1877) was in operation. He had a right to make his application within three years after the attainment of majority under that Act. But, under the Limitation Act of 1908, he would have to apply within three years of the accrual of the right to make the application. The judgment debtor made his application in January, 1909, when he was still a minor. That case was decided ..... X X X X Extracts X X X X X X X X Extracts X X X X
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