Muhammad Hussain Sahib and Another vs Abdul Karim Sahib

Seshagiri Ayyar, J.—This appeal raises an important; question of limitation. A preliminary decree in a mortgage suit was passed on the 7th

of October 1901. On the 6th of 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 3ent in most of the applications. They were all dismissed without granting the relief prayed for.

The present application is dated the 15th of 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. Doraswami Ayyar bas 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 Mallikarjunudu v. Lingamurti Pantulu (1902) 25 Mad. 244, 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 Pull Bench case, doubts arose

regarding the applicability of Article 179 of the Limitation Act (Act XV of 77). As was pointed out by Mr. M.O. Parthasarathi Ayyangar, the

learned Counsel for the respondent, the import of the Full Bench ruling was explained in Rangiah Goundan & Co. v. Nanjappa Row ILR (1903)

Mad. 780. It was suggested in that case that ordinarily an application for an order absolute would be one to which Article 179 would apply. In

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

was reported in Ashfaq Husain v. Gauri Sahai ILR (1911) All. 264. That decision as we shall show presently does not affect the conclusion

arrived at in Rangiah Goundan & Co. v. Nanjappa Row ILR (1903) Mad. 780. All that was laid down in Ashfaq Husain v. Gauri Sahai ILR

(1911) All. 264, 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 Bay 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 Ramasami Reddi v. Rangamannar Aiyangar (1915) 26 M.L.J. 255. 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 Majid v. Jawahir Lal ILR (1914) All. 350 was published. That case Jays 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 v. Sarat Chunder (1915) 21 C.L.J. 118 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 183 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 application Article

182 or 183 will apply as the decree happens to be from the mofussil Court or from the Original Side of the High Court. (4) There will be a fresh

starting point to the decree-holder after the preliminary decree ripens into a final decree. (5) It would follow from the above that a decree-holder

will have twelve years u/s 48 of the CPC to perfect the preliminary decree and another twelve years under the same section if he gets the order

absolute within the first twelve years. This view is in consonance with the earlier Madras view in Mallikarjunudu v. Lingamurti Pantulu ILR (1902)

Mad. 244, and in Rangiah Goundan & Co. v. Nanjappa Row ILR (1903) Mad. 780.

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 twelve 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.