Musammat Phul Koeri vs Bajrang Ram

Atkinson, J.—This miscellaneous appeal comes before me from the decision of the Judicial Commissioner of Chota Nagpur. The appeal is by the decree holder. The sole question for consideration is one concerning the question of limitation arising on the construction of Article 182 of the Limitation Act. The suit was brought by the plaintiff against the defendant on foot of a mortgage bond dated the 3rd of July 1905. The money advanced upon this mortgage bond was Rs. 48. Judgment was obtained on the 29th of May 1911 and the decree was formally drawn up on the 7th of July 1911. The decree, as drawn up, was the result of a compromise; and the compromise provided that the defendant should pay to the plaintiff the amount of principal secured by the mortgage deed plus the costs of the suit at the rate of Re I per month and that in the event of default in the payment of the instalments the whole sum due upon the mortgage with costs was to be paid but the decree contained no provision for the execution of the decree in the event of default being made and the whole sum secured thereby becoming due. Accordingly the decree-holder, on default by the judgment debtor, was obliged to apply to the Court for an order for liberty to execute the compromise decree, which was termed a money decree or in the alternative for an absolute order directing the sale of the mortgage premises. This application the decree-holder made in or about April or May 1914 upon notice to the judgment-debtor to show cause why the order sought by the decree-holder should not be made; and the judgment-debtor filed a petition setting out the cause which he relied upon as a bar to the decree-holder''s application to the making of an absolute order directing the sale of the mortgaged property. The date on which the judgment-debtor showed cause was the 9th of May 1914. The judgment or decree was dated the 29th May 1911 and the present application for leave to issue execution is dated the 6th of July 1914; and thus if nothing happened between the 29th May 1911 and the 6th July 1914 the right to issue execution would be barred by the provisions of Article 182 of the General Limitation Act.

It is contended, however, that the application that was made by the decree-holder in April or May 1914 for an absolute order for sale of the mortgage property after default committed by the judgment-debtor operates to bring the case within the provisions of Clause 5 of Article 182, whereby the case is saved and excepted from the operation of the three years rule of limitation; inasmuch as the application that was then made by the decree-holder for the absolute order was an application to the Court to take a step-in-aid of execution. The learned Judicial Commissioner has held in this case that the application to make the decree absolute and directing a sale of the mortgaged property was not an application to the Court to take a step-in-aid of execution; and that Clause 5 of Article 182 only applies to cases where there is an existing execution pending, and that in this case no execution was pending at the date of the application. In my judgment the learned Judicial Commissioner is wrong in the view he has taken. In my opinion an application, in furtherance of an execution to be taken by the Court, even though an execution proceeding is not then pending, is an application which saves limitation. The principle laid down in the case reported as Sudevi Devi v. Sovaram Agarwallah 10 C.W.N. 306 appears to me to be applicable to cases of this kind, more especially where a decree is granted in a conditional form. The learned Judge who delivered the judgment in that case says at page 310: "As it is desirable that proper practice in cases such as this be known I would state the course which should be followed When a conditional decree such as this is, is made, the plaintiff on default by the defendant should apply to the Court which passed the decree on notice to the defendant by motion or notice or by rule for an order absolute, Then if and when such an order is obtained application may be made in the usual way for execution of that order according to the provisions of the Code." This point was further considered in a case reported as Bechu Singh v. Bichharam Sahu 1 Ind. Cas. 677 : 10 C.L.J. 91, and there Mr. Justice Mukerji, after reviewing all the authorities on the point, approved of the case which I have just cited; and at page 102 of the report the learned Judge says, "On all these grounds, we must hold that the consent decree is valid, that it entitles the decree-holders without recourse to a fresh suit to proceed to sell in execution the mortgaged properties for realization of their dues, that they have acted within their rights in asking for an order absolute after notice to the mortgagors, and that the Court had inherent power to entertain and allow the application." Thus in my Opinion the application that was made on the 6th of July 1914 was an application to the Court to take a step-in-aid of execution and that consequently limitation of time is not a bar to the decree-holder''s right to issue execution in this case. I, therefore, allow this appeal with costs measured at one gold mohur. The plaintiff is also declared entitled to his costs in the lower Appellate Court and in the Court of the learned Munsif.