MENAKA BALA DASI Vs. HIRALAL GOVINDLAL

JUDGEMENT

(1.) In my opinion this appeal fails and must be dismissed. The appeal is by the widow of the original defendant in a mortgage suit Satyasadhan Dutt. The suit was of 1924. In 1925 a preliminary decree for sale was made whereunder the Registrar reported that a sum of Rs. 76,000 would be due on a given date, namely, 9 September 1926, and on that date the plaintiffs became entitled for the first time to apply for a final decree for sale. By the practice of this Court such application is made by a notice of motion which comes on before the Judge as a matter listed on the daily cause list. The plaintiffs had three years from 9 September 1926, within which to bring the motion and that gave them time until 8 September 1929. Now it appears that on 26 January 1927, the plaintiffs brought a notice of motion against the then defendant, Satyasadhan Dutt. The matter came before the learned Judge as a listed motion and was adjourned for a month. It had been served on the defendant's attorney and it does not appear for a single moment that the attorney had refused-indeed he could not refuse-to accept source of this notice of motion brought in a suit in which he was acting for the defendant. The notice of motion when it came on was adjourned for a month and at the end of that month the attorney said that he wanted further adjournment because his client turned out to be insane.

(2.) It is somewhat important to consider what exactly was done. It turned out that the question whether the client was insane in January 1927 was quite a serious question and the wife brought a suit in the name of her husband in January 1928 asking for a declaration that the mortgagor Satyasadhan Dutt was insane even at the time he executed the mortgage and that all the proceedings in the mortgage suit were bad. This suit was dismissed in May 1929 and an appeal against this decision was pending when in March 1930 Satyasadhan Dutt died. The appeal was continued by the widow and on 24 July 1930, the appeal was dismissed, so that the suit which began in January 1928 was got rid of in July 1930. In the meantime there was not very much practical good sense in endeavouring to bring to a hearing the application for a final decree for sale. Immediately thereafter, namely, on 15 August 1930, the mortgagees gave a notice of motion asking for a final decree. They had not taken the necessary steps in the suit to get the widow substituted in view of Satyasadhan's death in the previous March, so they took out a summons to get the abatement set aside and the substitution made. At the same time they applied against the widow for a final decree and at the time they did that they also gave notice to the Registrar asking him to reinstate the motion of 26 January 1927. Before coming to the exact question now before us it may well be just to complete the history of the plaintiffs trouble. The learned Judge on the original side dismissed the application to set aside the abatement so that the application for a final decree fell to the ground. That matter however was taken on appeal and by an order of this Court in March 1931 it was held that the abatement should have been set aside and the widow would have been substituted. Thereupon the motion of 15 August 1930 came up for consideration in 1932 before Lort-Williams, J.

(3.) The question before him was purely a question of limitation. If the application for a final decree must be treated as being made on 15 August 1930, the application was out of time, that being more than three years from September 1926. If however the learned Judge in the circumstances was entitled to regard the application with which he was dealing as the application made on 26 January 1927 then the application, whatever other merits there might have been, could not be dismissed on the ground of limitation. It turns out that the application of 26 January 1927 which, as I have said, was adjourned for a month, and was then met by a statement on behalf of the mortgagor's attorney that his client was insane having been adjourned once or twice was before the Court on 25 May 1927. The minute by the officer of the Court is in existence which says that on that date it was adjourned by consent for one month. In the ordinary course therefore it would become the duty of the officers of the Court to see that motion appeared that day month in the cause list as an adjourned motion. Investigation has been made and it does not appear that any trace of it can be then found and no trace of this motion has been found in the Court's record since the entry of 25 May 1927.