Patna High Court
Bhaiga Parida vs Gannath Khandi on 18 April, 1918
Equivalent citations: 46IND. CAS.569, AIR 1918 PATNA 492
JUDGMENT Chapman, J.
1. In this case the mortgagee obtained a decree nisi for sale on the 18th December 1908. He applied for a decree absolute for sale supported by the necessary affidavit on the 30th November 1914. The sale was thereafter held and confirmed. The suit out of which this appeal arises, is a suit by the mortgagor to set aside the sale upon the ground that the application for a decree absolute for sale was barred by limitation and upon the ground of fraud, and incidentally upon the ground that before the granting of the application for decree absolute, the Court had given no notice to the judgment-debtor. So far as the question of fraud is concerned, the learned District Judge in the first appeal has held that there was no fraud. He has held that a suit will not lie to set aside a decree absolute in a mortgage case merely upon the ground that the decree absolute was obtained after the period provided by the law of limitation, and that a suit to set aside a decree absolute for sale cannot succeed merely upon the ground that the mortgagor had received no notice before the sale. Prior to 1808, it was ordinarily held by the Calcutta High Court that a mortgagee had 12 years within which he could apply for a decree absolute. As a result of the enactment of the Code of Civil Procedure and the Limitation Act, 1908, the 12 years' limitation was reduced to three years. It will be remembered that this preliminary decree was obtained on the 18th December 1908 shortly after the change in the law upon the subject. The application for decree absolute was barred in 1914. I am of opinion, quite apart from any question as to whether a decree-holder was justified or the Court was justified in making a mistake on the question of limitation, that a suit will not lie to set aside a decree absolute for sale merely upon the ground that the application for such a decree was barred by limitation. The Limitation Act of 1908 has been drafted in a manner as to make it quite clear that a question of limitation is not a question of jurisdiction. Section 4 of that Act does not say that the Court shall not entertain applications or suits filed after the period provided by the law of limitation; what it says, is that such suits and applications shall be dismissed. In Mahomed Hossein v. Purundur Mahto 11 C.287 : 5 Ind.Dec, (N.S.)1951 it was held that a suit will not lie to set aside a decree merely upon the ground that the decree was barred by limitation, and that view has been subsequently consistently followed in the Calcutta High Court. I am of opinion that the learned Judge was also right in holding that the suit could not succeed merely upon the ground that no notice was given to the mortgagor of the mortgagee's application for a decree absolute. Such a notice is not required expressly by the provision of any Statute. It is impossible, therefore, to say that the failure to give notice affected the jurisdiction of the Court. At the same time I am of opinion that if an application had been made to set aside the decree absolute upon the ground of want of notice, the Court would have had inherent power to allow that application, and if this suit had been filed within 30 days of the date upon which the mortgagor came to know of the sale, I would have been disposed to treat the suit as an application and to have set aside the sale merely upon the ground that the mortgagor had no notice of the application for a decree absolute. The suit, however was filed considerably more than three months after the mortgagor came to know of the sale. It is, therefore impossible to treat it as an application which the Court bad an inherent power to allow. It has been somewhat faintly contended that after the period provided by the law of limitation, a mortgagee's rights to a decree absolute become absolutely extinguished. We have been referred to the English case of Kibble v. Fairthorne (1895) 1 Ch. 219 : 64 L.J. Oh. 184 : 71 L.T. 755 : 43 W.E. 327 : 13 R 75, That decision was governed by the interpretation of a section of an English Statute relating to the period in which an action should be brought in respect of the right of a mortgagee against a mortgagor in possession. We have to deal in the present case not with the case of an action, but with the case of an application. The mortgagee has already commenced his remedy and his action in the matter was not barred by the Limitation Act. So far as the application for a decree absolute is concerned, Section 28 of the Indian Limitation Act provides only the extinction of rights upon the termination of the period of limitation for a suit, it does not say that at the termination of the period of limitation for an application, any right shall be extinguished. We are of opinion that this appeal fails and it is accordingly dismissed with costs.
Rob, J.
2. I agree.