TMI Blog1921 (7) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... ges by deposit of deeds. Accordingly Dhanpat Singh on June 3, 1893, created at Calcutta an equitable mortgage of the property of the Roys, comprised in. these mortgage deeds, by depositing these latter documents with a firm trading at Calcutta as Shewaran Khoshal Chand, hereinafter styled the firm, to secure the repayment of ₹ 70,000 lent by them to him, with interest till paid. It is not clear whether at this particular date the Roys had notice of this transaction. Early in the year 1894, Dhanpat Singh instituted two ordinary mortgagees' suits against the Roys to recover the amount secured by the three first-mentioned mortgages. The equitable mortgagees, the firm, were not made parties to these suits or either of them. The Roys contested these suits and, ultimately, a settlement was come to whereby Dhanpat Singh accepted a sum of ₹ 1,20,000 in full satisfaction and discharge of the amount due to him for principal and interest on the three legal mortgages. The Roys had not this sum of ₹ 1,20,000 available. 2. They were in consequence obliged to raise the money to pay Dhanpat Singh the arranged sum of ₹ 1,20,000. They accordingly borrowed from the E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a decree dated May 7, 1894, whereby it was in each suit respectively decreed that the suit having been amicably settled it should be disposed of, that the claim of the plaintiff should be taken to have been satisfied, and that each party should bear his own costs. 4. On July 17, 1896, Dhanpat Singh paid to the firm on foot of the hundis he had made to them, ₹ 42,000, and procured from the firm a release from all further liability on all these hundis on the terms that this compromise was to be without prejudice to the company's rights: to enforce their lien against the properties comprised in the three mortgages. 5. On May 11, 1897, the firm instituted a suit against the Roys and the company, in the Court of the Subordinate Judge of Murshidabad, to recover the sum due under their equitable mortgage, which latter they claimed had priority over the legal mortgage executed to the company on April 23, 1894, and further, that they were entitled to enforce their claims against the properties comprised in the three original mortgage deeds deposited with them, and also against the Roys personally. The heirs and personal representatives of Dhanpat Singh, deceased, were by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the firm the sum of ₹ 45,377-5-16 with interest calculated up to date, that the firm had agreed to assign the said decrees to one Edward Hugh Bray (party thereto) at the price or sum of ₹ 23,000, assigned to him the two aforesaid decrees dated August 26, 1905, and all moneys now or hereafter to become due thereunder respectively and all benefit and advantage under the said decrees respectively, including the charge created on the lands and premises described in the schedule thereto, to hold the decrees and all other the premises thereby assigned or mentioned or intended so to be assigned unto the said Edward Hugh Bray, his executors, administrators and assigns, absolutely and for ever. This deed was duly registered. 7. This Edward Hugh Bray was a director of a company which acted as agents for the company, the mortgagees in the deed of April 23, 1894. The Roys desired to pay to Bray the sum of ₹ 50,000 due under the two decrees assigned to him. They apparently had not money at their command for that purpose, and accordingly they borrowed from the principal, the company, to pay that company's agent, Bray, this ₹ 50,000. By deed bearing date Febru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t at this period it was considered in Calcutta that the period of limitation under the Statute of Limitation of 1877 ran when a decree was dismissed for want of prosecution, not from the date the decision of the decree appealed against, but from that of the dismissal. Of course the Board accepts with the utmost confidence that assurance, but it is not the law. Two cases decided in the year 1914 establish this. The first is the case of Abdul Majid v. Jawahir Lal I.L.R. 36 A. 350, and the second, Batuk Nath v. Munni Dei L.R. 41 I.A. 104. In the first the judgment of the Board was delivered by Lord Moulton. It was decided that under the Indian Limitation Act, 1877, Schedule II., Article 179, the period of three years named therein ran in such a case from the date of the decree appealed against and not from the date of the order to dismiss the appeal for want of prosecution. The ground on which the decision was based was thus stated by Lord Moulton: The order (i.e., the formal order) dismissing the appeal for want of prosecution, did not deal judicially with the matter of the suit, and could in no sense be regarded as an order adopting or confirming the decision appealed from. It mere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the creation by Dhanpat Singh of the equitable mortgage by the deposit with the firm of the three mortgage deeds and the transfer of the two decrees of August 26, 1905, to Bray on June 23, 1907, and then avers that Bray was about to execute those decrees, and that considering it was more advisable to amicably pay off the decretal debt than bear the cost of execution, the Roys borrowed a sum of ₹ 50,000 from the company on a mortgage and paid the same to Bray for the satisfaction of the debt due upon the decrees. In para. 11 of the plaint it is submitted that under the deed of indemnity the Roys were entitled to recover the whole of the debt due to the firm and the costs of the suits relating to it, which the Roys were obliged to pay. 14. Maharaj Bahadur Singh, one of the defendants, filed in reply to this plaint a written statement, raising many quite untenable defences to which it is unnecessary to refer. In its third paragraph he, however, avers that the suit of the plaintiffs is barred by limitation in respect of the different sums of money sought to be recovered, and in its fifteenth paragraph further avers that even if the Roys had paid to Bray the sum alleged, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossibly due to the fact that the whole litigation was based on the two decrees and on those alone. If the task of those conducting the case for the plaintiffs had been to elicit the irrelevant and leave the relevant hidden and obscure, they could not well have succeeded better. It seems incredible, but so it is, that there is not a particle of evidence written or parol as to what was done with the three mortgage deeds, by the deposit of which the encumbrance on which the two decrees of August 20, 1905, were based was created. It is not shown whether the firm delivered them to Bray when the decrees were assigned to him, or whether Bray delivered them to the Roys when the decrees were paid, or whether they were delivered by Bray or by the Roys to the company when the mortgage of February 1, 1910, was executed and the company's cheque indorsed over to the Roys. On these important points the Board is left to conjecture what would be the natural and probable course for prudent men in their own interest to take. But that is not all. Not a particle of evidence is elicited to prove the important statement in the plaint that Bray was about to execute the two decrees, and that the Roys t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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