Peer Ammal and Another vs N.S. Nallusami Pillai and Others

Krishnan Pandalai, J.—The question is whether this appeal was presented in time. The material dates are as follows:

The appeal is from a preliminary decree on a mortgage passed ex parte by the Subordinate Judge of Madura in O.S. No. 128 of 1926 first on 8th

August, 1928. The appellants, (defendants 1 and 4) applied under Order 9, Rule 13 on 9th August, 1928, to set aside the ex parte decree and the

Court set it aside on 12th October, 1928. Meanwhile, the appellants had also on 9th August, 1928, applied for copies of the judgment and decree

and they were ready for delivery on 27th September, 1928, so that, had the appellants wanted to appeal, they had out of the 90 days available

about 1 1/2 months more after 12th October, 1928. As the decree was set aside by the Sub-Judge himself, no appeal was preferred. But the

plaintiff (respondent) applied in C.R.P. No. 116 of 1929 to this Court to revise the order of the Sub-Judge setting aside the ex parte decree and

this Court on 22nd November, 1929, set aside that order thus restoring the preliminary decree to effect. This appeal was presented on 6th

January, 1930.

The provision of the Limitation Act applicable is Article 156 which prescribes a period of 90 days from the date of the decree or order

appealed from. The appellants contend that the date of this decree for the purpose of appeal must be taken as 22nd November, 1929, when this

Court by its order in C.R.P. No, 116 of 1929 restored force and effect, including appealability, to the original decree which it had lost by its being

set aside. The respondent contends that the date of the decree is 8th August, 1928, the date when it was originally passed, and that its subsequent

vicissitudes have no effect on the period of appealability and that the only course open to the appellants is to induce this Court to excuse the delay

u/s 5 of the Limitation Act. No application u/s 5 being now before us, we have to decide between the two above contentions as to the starting

point of limitation.

No decision exactly in point has been brought to our notice. But we entertain little doubt that the appellants'' contention must be accepted. It is

not only in consonance with the principle underlying the law of limitation that suits, appeals and other legal proceedings are possible only when

there is some cause of action, or ground of appeal or other grievance on which the plaintiff, appellant or applicant has a right to come to Court and

ask for relief, but the opposite view would lead to the absurd result that an appellant''s right to appeal and the decree-holder''s right to execute the

decree are both barred before the decree to be appealed from or to be executed came into legal being.

In Muthu Korakkai Chetty v. Modar Ammal ILR (1919) M. 185 : 38 M.L.J. 1, a Bench of live Judges dealt with the question whether for an

application for delivery of properties sold in Court auction, limitation ran from the date of an ex parte confirmation of the sale (26th April, 1913) or

from the termination of proceedings taken by the opposite party to set aside that confirmation (25th June, 1915). It was held by four of the learned

Judges that the latter date was the terminus a quo although the result of the proceedings in respect of the properties subsequently sought to be

recovered was that the order of 26th April, 1913, was confirmed by that of 25th June, 1915. The other learned Judge contented himself with

answering the question put in the negative as it was put in the form whether the cause of action for application was suspended during the pendency

of the proceedings. The decisions of the Judicial Committee bearing on this question, an apparent conflict between which was the cause of the

reference, to a Full Bench, were so fully gone into in that case, that it is needless to refer at length to them again. To. understand the ground of

decision of the Court it is sufficient to refer to the citations from the Privy Council decisions in Baijnath Saliai v. Ranigut Singh (1890) L.R. 23

IndAp 45 : ILR 23 C. 775 (P.C.) and (1888) L.R. 15 I.A. 211 (Privy Council) . In the former case which was one of a revenue sale by the

Collector in 1882 confirmed by the Commissioner in 1884 and set aside by the Board of Revenue in 1884 and confirmed by the. Board in review

in 1886 their Lordships said that for the, purpose of limitation there was no final or definitive confirmation of the sale till the final order on review by

the Revenue Board in 1886. In (1888) L.R. 15 I.A. 211 (Privy Council) it was held that money due on an account stated which would, as such,

have been barred in three years from the statement became for purposes of limitation a debt of a new character when, it having been retained by

the debtor as part of the consideration for a proposed sale of land, that arrangement failed, the sale not being specifically enforceable and so

declared by the decree between the parties. Their Lordships said as to the defence that the suit for the money should have been brought while the

arrangement for setting it off against the purchase-money was still in force that:

It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his

property if he does not. And it would be a lamentable state of the law if it were found that a debtor, who for years had been insisting that his

creditor shall take payment in a particular mode, can, When it is decided that he cannot enforce that mode, turn round and say that the lapse of

time has relieved him from paying at all.

Reading the judgments pronounced in Muthu Korakkai Chatty v. Madar Animal ILR (1919) M. 185 : 38 M.L.J. 1, it becomes clear that while

on the one hand no ""suspension"", in the proper sense, of a period of limitation which has begun to run is permissible except as provided in Section

14 etc., of the Limitation Act, the Courts will place a liberal or in the language of Oldfield, J., an accurate construction on the somewhat loosely

expressed words in column 3 of the first schedule which prescribe the starting point of the period of limitation by not requiring parties to start legal

proceedings in circumstances when it would be futile for them to do so. As Seshagiri Aiyar, J., put it:

Subject to the exemptions, exclusion, mode of computation and the excusing of delay, etc., which are provided in the Limitation Act, the language

of the third column of the first schedule should be so interpreted as to carry out the true intention of the legislature, that is to say, by dating the

cause of action from a date when the remedy is available to the party(p. 213).

The ''respondent''s advocate relied on Ammathayi Animal v. Siyarama Pillai (1924) 48 M.L.J. 74 and the Privy Council decision referred to in

it, (1918) L.R. 46 I.A. 60 (Privy Council) . In that case the plaintiff had obtained a preliminary decree on a hypothecation under which the time for

payment of the mortgage money was fixed for 6th March, 1917. Meanwhile, the mortgagor''s (defendant''s) husband brought a suit in 1916 against

the mortgagor and mortgagee for a declaration that the mortgaged property belonged to himself and that the mortgage was therefore not binding on

the property. That suit was decreed in the first Court in favour of the husband on 26th April, 1917, and by the first Appellate Court, but was

dismissed in second ''appeal by the High Court on 28th April, 1920. The plaintiff applied for a final decree on 10th September, 1920, more than

three years after the date fixed for payment but less than three years after the defendant''s title to the mortgaged property was affirmed in the

second appeal. The argument put forward for the plaintiff in this Court was that he had lost the right to apply for a final decree by the decisions of

the first Court and the first Appellate Court in the husband''s suit, that the property belonged to him and that it revived on the decision of the

second appeal that it belonged'' to the mortgagor. The Court did not accept this on the ground that the Court when it sells property in execution of

a mortgage decree does not guarantee the title of the judgment-debtor as against strangers and that Article 181 which prescribes the starting point

of limitation for such an application as the time when the right to apply accrues, does not say (mean) that the right to apply accrues only when the

mortgagor''s title as against strangers is clear. Therefore it was held that the right to apply for a final decree accrued on the ""date fixed for payment

and that as no ground of suspension of limitation could be urged under the Limitation Act and no other ground of suspension was available

according to (1918) L.R. 46 I.A. 60 (Privy Council) , the application was barred.

This decision has in our opinion no application to this case. It merely decided that under Article 181 the right to apply for a final decree in a

mortgage suit accrues not when the disputes between the decree-holder and strangers to the decree about the title to the mortgaged property

terminate and the mortgagor''s title as against such strangers is established but from the date fixed in the decree for payment of the debt. In this

case we have to deal with a different article, namely 156 and the question is what is the meaning to. be given to the words ""date of the decree or

order appealed from"" when the decree has been set aside by the Court which passed it within the appealable period and, therefore, no appeal is

thereafter competent to the defendant and the decree is afterwards restored by a higher tribunal. In our opinion the case clearly falls within the class

of cases when a fresh starting point of limitation for appealing has necessarily to be found. The opposite view would lead to the absurd result, that

the defendant would be deprived of the right of appeal because he did not appeal against a decree which had ceased to exist and against which,

therefore, he could not have appealed after it was set aside. But it was suggested that he ought to have appealed before the decree was set aside

under Order 9, Rule 13. Assuming he had done so, as soon as the decree was set aside under Order 9, Rule 13, the appeal would become

infructuous and would necessarily have to be dropped and the position after the decree was restored in revision by the High Court would be the

same as if he had not appealed at all. It is not to be supposed that the appeal should be kept pending in contemplation of the double uncertainty

that the plaintiff might take the order setting aside the decree to the High Court in revision and that this Court might interfere in revision. If we look

at the matter from the point of view of the decree-holder, it becomes still more absurd if we have to suppose that his right to execute the decree

under Article 182 is in the circumstances of the present case to begin from the date of the first decree which was � subsequently set aside and

later restored. If between the date of the original decree and the restoration in revision a period of more than three years has expired, it would

follow that as there is no allowance for the intervening period according to the Actor any other clauses of Article 182, his application for execution

would be barred before he succeeded in getting his decree restored. A construction which leads to such results could not have been contemplated

by the Legislature. We think, therefore, that the date of the decree appealed from must be taken as the date when the decree was restored in

revision by this Court. On this footing, we hold that the appeal was presented in time and it will be admitted.