Ramaswami Reddi vs Sokkappa Reddi and Another

Spencer, J.—On further consideration I am not satisfied that the decision dated 2 C-3-1917 of Srinivasa Iyengar, J. and myself in A.A.A.

Order No. 95 of 1916 was wrong. It is argued on the strengh of the subsequent decision by another Bench in Nimmala Mahankali v. Kallakuri

Seetharamiah (1916) 32 M.L.J. 455 that the fact that in this case the date for payment was a date after the Code of 1918 came into force, it is

enough to distinguish this case from the cases in Balaji Rao v. Harirama Chetty (1915) 82 Ind.Cas. 39 Singaravelu Pilled v. Santhanakrishna

Mudaliyar (1915) M.W.N. 643 Hussain v. Karim ILR 39 Mad. 544 and Natesa Udayan v. Annaswami Udayan (1916) 3. L.W. 468 which we

followed. I think that a final and executable decree was passed in this case under the Transfer of Property Act, notwithstanding that the direction in

the decree for sale of property was made conditional on default of payment of the amount found due to the plaintiff by a certain date. With due

regard to the learned Judges who decided Nimmala Mahankali v. Kallakuri Seetharamiah (1916) 32 M.L.J. 455 I am of opinion that the

introduction of the new Code did not give rise to any new right under Article 181 of the Limitation Act to have a fresh final decree passed in

consequence of the provisions of the Transfer of Property Act under which these proceedings commenced being superceded (See Section 6,

General Clauses Act). In other words if Article 182 governed the proceedings on 16-7-08 when the decree was passed the introduction of the

new CPC on 1-1-(SIC) did not have the effect of making it incumbent on the decree-holder to apply under Article 181 for a final decree under

Order 34, Rule 5, The Second Appeal must be again dismissed with costs.

Sadasiva Aiyar, J.

I fully concur in the opinion just now pronounced by my learned brother. The question whether Article 181(old Article 178) or Article 182 (old

Article 179) of the Limitation Act is applicable to an application for an order absolute under the Transfer of Property Act procedure is of little

importance as whether the former or the latter Article applied to the initial application, a subsequent application whether for an order absolute or

for execution in the strict sense will be governed by the provisions of Clause 5 of Article 182 which gives ''6 years period from the fresh starting

point created by the initial application which, is an ''application for execution or at least, an application to take a step in aid of execution. (See

however Abdul Majid v. Jawahir Lal (1916) 32 M.L.J. 455, which shows'' that Article 182 (old Article 179) is the Article really applicable even

to the initial application). I am further of opinion that having regard to the General Clauses Act, Section 6, Clause (e), the repeal of the provisions

of the Transfer of Property Act could not deprive the holder of a mortgage decree passed under it of his "" remedy"" by way of getting an order

absolute ""in respect of"" his rights under that decree so as to make it executable in the strict sense. I therefore dissent respectfully from the obiter

dicta in Nimmala Mahanleali v. Kallakuri Seetharamiah (1916) 32 M.L.J. 455 on which the petitioner relies and agree that the Second Appeal

should be dismissed with costs.