P.B.Mukharji, J. - (1.) This matter arises out of a special report by the Registrar made under Chapter XXVI Rule 50 of the Original Side Rules of this High Court, seeking the opinion of this Court whether the Final Mortgage Decree for Sale, under which he is selling the mortgaged premises, has become barred by limitation. The Registrar in his Special Report dated 23-8-1954 states: "I make a Special Report to the Hon'ble Court seeking the opinion of the Court on the following questions: (1) Is the decree dated 20-4-36 barred by limitation? (2) If so, can any Reference proceedings be now initiated under the said decree? I direct Shri S. K. Ghosh, Solicitor, to take out a Notice of Motion and seek directions of the Court on the points contained in this Special Report, within a week from the re-opening of the Court after the Long Vacation. The Reference stands adjourned 'sine die' with liberty to mention." The attorney for the plaintiff according to the directions pf the Registrar's Special Report took out the Notice of motion on 23-11-1954 as required under Rule 50 Chap. XXVI of the Original Side Rules.
(2.) A point of law of very considerable interest and importance arises for determination on this Special Report This issue for determination is whether a Final Mortgage Decree for Sale can itself be barred by limitation as provided by Article 183 of the Limitation Act, the decree being one made by this High Court. Questions of revivor and acknowledgment are also involved in the facts of this case.
(3.) Some essential facts and dates in the numerous proceedings in respect of the premises concerned require to be stated for a better appreciation of the points and their ultimate decision. On 19-5-1934 the defendant in the suit mortgaged to the plaintiff premises No. 86/1, Cornwallis Street, 7/C, Kirti Mittei Lane, 13/1, Desspara and 31, Golaghat subject to previously created charges. The plaintiff filed this present mortgage suit in 1935. A preliminary decree was passed in favour of the plaintiff on 8-3-1935. On 23-7-1935 after taking the accounts the Registrar filed his report certifying that a sum of Rs. 3,914-6-6p was due by the defendant to the plaintiff on the said mortgage. Thereafter on 20-4-1936, the final decree for sale was passed in favour of the plaintiff in this mortgage suit. The main point for determination in the Special Report is whether this final decree for sale dated 20-4-1936 is barred by limitation. The form of the final decree for sale in this case followed the standard form as provided in Form VI of Appendix D to the First Schedule of the Civil Procedure Code by directing inter alia: "It is hereby ordered and decreed that the mortgaged property in the aforesaid preliminary decree mentioned Dr a sufficient part thereof be sold with the approbation of the said Registrar to the best purchaser or purchasers that can be got for the same.";