Parmeshri Lal and Others vs Mohan Lal

Burkitt, J.—Under the ruling of this Court in the case of Chunni Lal v. Harnam Das ILR All. 302, it was held, following the case of Oudh Behari Lal v. Nageshar Lal ILR All. 273, that an application to obtain an order absolute u/s 89 of Act No. IV of 1882 is a proceeding in execution and is subject as such to all the rules relating to execution. The present application is not one u/s 89, but is one u/s 87 of the Transfer of Property Act, its object being to have an order made debarring the judgment-debtor from all right to redeem the mortgaged property. I am unable sufficiently to distinguish proceedings u/s 89 from those u/s 87 of the Transfer of Property Act, so as to be able to say that the former are, and the latter are not, proceedings in execution. I must hold, following the ruling of this Court quoted above, that the present application is an application in execution to which the provisions of Article 179 of Schedule II of the Limitation Act apply. It is admitted that a period of more than three years has elapsed between the date of the decree and the date of the application. The application was therefore time-barred when made. I allow this appeal, and, setting aside the decree of the Court below, restore the decree of the Court of First Instance and dismiss the decree-holder''s appeal to the Lower Appellate Court with costs.