Mahammad Husain Saib and Another vs Abdul Kareem Saib

This appeal raises an important question of limitation. A preliminary decree in a mortgage suit was passed on the 7th October 1901. On the 6th

April 1904, the first application was presented to obtain the order absolute. This apparently was filed as an application for the execution of the

preliminary decree. Subsequent applications were made in 1907, 1910 and 1912, all within three years of the immediately preceding application.

Notices were sent in most of the applications. They were all dismissed without granting the relief prayed for. The present application is dated the

15th April 1912. It was objected to in the Court of first instance that as more than three years had elapsed from the date of the preliminary decree,

the application was barred. The District Munsif held that there was no bar of limitation for such applications. On appeal the District Judge held that

the present application must be treated as one in execution of the decree and that Article 181 of the Limitation Act applied to it.

Mr. S. Doraiswami Iyer has cited before us a large number of authorities to show that the preliminary decree is not executable and that Article

180 applies to the application. There have been conflicting decisions regarding the executability of the preliminary decree. Different High Courts

have taken different views. We wish to confine ourselves to a consideration of the decisions of this Court and of the Judicial Committee of the

Privy Council.

In Malikarjunadu Setti v. Lingamurti Pantulu 25 M.P 244 : 12 M.L.J. 279 the majority of the Full Bench came to the conclusion that the

preliminary decree in a mortgage suit was executable, and that the process for obtaining the order absolute was by way of execution. In arriving at

this result the learned Judges were largely influenced by the language of Sections 88 and 89 of the Transfer of Property Act. The first Section

speaks of the preliminary decree and the second Section of applying for an order absolute. Even after the pronouncement in the Full Bench case,

doubts arose regarding the applicability of Article 179 of the Limitation Act (Act XV of 1877). As was pointed out by Mr. M.C. Parthasarathy

Iyengar, the learned Counsel for the respondent, the import of the Full Bench ruling was explained in Rungialk Goundan Co. v. Nanjappa Row 26

M.P 780 : 13 M.L.J. 412. It was suggested in that case that ordinarily an application for an order absolute will be one to which Article 179 would

apply. In certain cases Article 178 may also apply. This view was acted on in this Presidency for a long time until the decision of the Judicial

Committee was reported in Haji Ashfaq Husain v. Lal Gauri Sahai 9 Ind. Cas. 975 : 33 A.P 264 : 15 C.W.N. 370 : 8 A.L.J. 332 : 9 M.L.T. 380 :

13 C.L.J. 351 : 13 Bom. L.R. 367 : 4 Bur. L.T. 121 : 21 M.L.J. 1140. That decision, as we shall show presently, does not affect the conclusion

stated in Rungiah Goundan and Co. v. Nanjappa Row 26 M.P 780 : 13 M.L.J. 412. All that was laid down in Haji Ashfaq Husain v. Gaitri Sahai

9 Ind. Cas. 975 : 33 A.P 264 : 15 C.W.N. 370 : 8 A.L.J. 332 : 9 M.L.T. 380 : 13 C.L.J. 351 : 13 Bom. L.R. 367 : 4 Bur. L.T. 121 : 21 M.L.J.

1140 was that time began to run against the decree-holder after the passing of the final decree, that is, ""from the date when it was made absolute.

It did not say that the preliminary decree was not executable. But it was so understood in some of the cases decided in Madras. It is not necessary

to refer to all the decisions. They are all mentioned in Epoor Ramasamy Reddy v. Kandadai Rangamannar Iyengar 23 Ind. Cas. 390 : 26 M.L.J.

255 : 15 M.L.T. 246 : (1914) M.W.N. 622. In that case Sankaran Nair and Ayling, JJ., without expressing their opinion regarding the correctness

of the decisions they quoted, held that the judgment-debtor was barred by res judicata from raising'' the plea that the preliminary decree was not

executable. All these decisions were passed before the Judicial Committee''s decision in Abdul Majul v. Jawdhir Lal 23 Ind. Cas. 649 : 36 A.p

350 : 12 A.L.J. 624 : 16 Bom. L.B. 395 : 18 C.W.N. 963 : 19 C.L.J. 626 : 27 M.L.J. 17: (1914) M.W.N. 485 : 16 M.L.T. 44 : 1 L.W. 483

was published. That case lays down distinctly that the Article applicable to an application for obtaining an order absolute is 179. of the Limitation

Act.

This pronouncement must be taken to overrule the decisions of this High Court which held that the preliminary decree was not executable.

Another decision of the Judicial Committee strengthens this view. In Munna Lal Parruck v. Sarat Chunder Mukeerji 27 Ind. Cas. 683 : 21 C.L.J.

118 : 17 M.L. T 120 : 2 L.W. 282 : 19 C.W.N. 561 : 17 Bom. L.K. 408 their Lordships held that an application for an order absolute regarding

a preliminary decree passed on the original side of the High Court was governed by Article 182 of the Limitation Act. Although the third column of

that Article speaks of the "" enforcement"" of a judgment, decree or order, there can be no doubt that it is a provision for the execution of decrees

passed on the original side, corresponding to Article 182 which deals with the Mofussil decrees. This view makes it clear that the process by which

a preliminary decree is to be made the final decree is by way of execution.

The result of these decisions of the Judicial Committee may be thus summed up: (1) The preliminary decree passed u/s 88 of the Transfer of

Property Act is executable. (2) In order to obtain the order absolute u/s 89, steps have to be taken in execution. (3) To such applications Article

182 or 183 will apply, as the decree happens to be for the Moffusil or for the original side of the High Court. (4) There is a fresh starting point

given to the decree-holder after the preliminary decree ripens into a final decree. (5) It would follow from (he above that a decree-holder will have

12 years u/s 48 of the CPC to perfect the preliminary decree, and another 12 years under the same section if he gets the order absolute within the

first 12 years. This view is in consonance with the earlier Madras view in Mahitearjimadu Seth v. Lingamwti Pantulu 25 M.p 244 : 12 M.L.J. 279

and in Rangiah Goundan and Co. v. Nanjappa Row 26 M.p 780 : 13 M.L.J. 412.

All these difficulties are now avoided by the enactment of Order XXXIV in the Code of Civil Procedure.

For these reasons we hold that as the application for an order absolute was made within 12 years of the passing of the preliminary decree and

as the decree has been kept alive by the steps taken under Article 179, this application is not barred by limitation.

We dismiss the appeal with costs.