Sir L.H. Jenkins, Kt., C.J.

1. The appellant is a mortgagee, and the mortgage underwhich he claims is dated the 25th of January 1886. On the 16th of December1886, he obtained a decree on his mortgage by consent. On the 3rd of July 1909he made the application out of which the present appeal arises; and by theapplication he asks that he may be at liberty to add Upendra Lal Bose as aparty defendant to the suit, and that thereafter he may be at liberty toproceed to sell pursuant to the decree made in this suit on the 16th ofDecember 1886 an undivided quarter share of the defendant Sharat ChandraMukerjee of and in premises No. 30, formerly No. 49, Clive Street, Calcutta,and Nos. 2 and 3 Bishu Babus Lane, Khidderpur and the family dwelling house atKhidderpur, and that for the purpose of such sale all necessary directions maybe given to the Registrar. Mr. U.L. Boses position is that, on the 8th ofApril 1903 he became a purchaser of the Clive Street property, and in hisaffidavit he states that "he is a bona fide purchaser for fullmarket-value, that he had no notice of the plaintiffs claim that he had laidout large sums of money with borrowed funds in the improvement of the property,and that other persons besides himself have got an interest therein and that itwould be extremely hard if after the lapse of 23 years the plaintiff is allowedto assert a claim which he had given up years ago."

2. The case was heard by Mr. Justice Fletcher, the partiesbefore him. being the applicant, the mortgagee on the one side, and on theother the mortgagor and Mr U.L. Bose who resisted the application with success.From the judgment of Mr. Justice Fletcher the present appeal has beenpreferred; and I will, at the outset deal with a point taken on behalf of Mr.U.L. Bose. His name does not appear as a respondent, and, therefore, it ismaintained, as against him, the judgment of Mr. Justice Fletcher cannot becouched. But it appears that the appellant, according to his rights, made everyeffort he could, to make Mr. U.L. Bose a party respondent. He may not haveproceeded in the most approved manner still, undoubtedly, he was anxious tohave Mr. U.L. Bose as a respondent, and naturally anxious. Having failed in hisendeavour, because, he says, he could not persuade the Court officers to grantthe necessary process, he has applied under rule 20, Order XLI that Mr. U.L.Bose may be added as a respondent here. It has been suggested that the Courthas not power to, do that, inasmuch as the time for appealing has elapsed.Counsel has even been able to cite a case which he thought bore out that view,but I think the case has been misunderstood and it merely amounts to this thatit is a question for the Court in its discretion to determine in each casewhether or not it will make an order contemplated by rule 20, Order XLI. I haveindicated the circumstances under which it became necessary to make theapplication in this case, and I think that the appellant certainly is entitledto ask that Mr. U.L. Bose should be made a party, and that, therefore, theorder to that effect should go. Therefore, I propose to deal with this appealon the footing of Mr. U.L. Bose being a respondent before us.

3. It will be seen that the two critical facts are, first,that the decree on the mortgage was made so far back as the 16th of December1886 and that the present application is made in 1909. Those dates havenaturally prompted the respondents to raise a plea of limitation and to suggestthat there must be some mode of limiting litigation. The question that we haveto decide is, whether the applicant is right when he contends that he is, sofar as this application goes, free from the law of limitation.

4. Now, the decree first provides for a personal decreeagainst the mortgagor and this is followed by a provision for the return ofdocuments and so forth, on payment in accordance with this personal decree.Then, there is a provision that in default of payment there is to be a sale ofthe property, and it is further ordered that if the money realised by such saleshall not be sufficient for the payment in full of the sum of Rs. 25,282-8 withinterest, that being the amount for which the personal decree was passed, thenthe defendant should pay to, the plaintiff the amount of the deficiencytogether with the plaintiffs costs. The decree is in a sense peculiar, andthat has led to a contention before us on the part of the respondents that itdoes not come within the provisions of the Transfer of Property Act in generalor of sections 88 and 89 in particular. No doubt, if those sections be readliterally, that is so. On the other side, it is contended that the decree comeswithin the provisions of the Transfer of Property Act, and it is on that groundprincipally that it is contended, in the light of the cases, that the presentapplication is not barred.

5. For the purpose of my judgment I will assume that thisdecree is within the Transfer of Property Act, and I prefer to put it on thatbroad ground rather than to seek minute distinctions, though I can quite seethat the decree does encourage the distinctions which have been suggested.

6. Now, if it be a decree, as the appellant before uscontends, under section 89 of the Transfer of Property Act, and was such adecree in 1886 when it was passed, then it is clear, that no further decree wasto follow on it. All that was to follow on it was, under section 89, an orderfor sale. It is no use oar looking into expressions in the cases, for thepurpose of determining this: the Act itself is clear and plain. It provides insection 88 that there shall be a decree for sale. Section 89 provides that"if such payment", that is, the payment contemplated by the decree,"is not made, the plaintiff or the defendant, as the case may be, mayapply to the Court for an order absolute for sale of the mortgaged property,and the Court shall then pass an order that such property, or a sufficient partthereof, be sold, and that the proceeds of the sale be dealt with as ismentioned in section 88; and thereupon the defendants right to redeem and thesecurity shall both be extinguished." Now, what is, speaking generally,the nature of that order for sale In Harendra Lal Roy v. Maharani Dasi: 28 I.A. 89 : 28 C. 557 there was a decree for sale,substantially as. there was here, and the respondents in that case, themortgagors, being in default, the appellant petitioned for an absolute orderfor sale. Lord Davey in disposing of the case says in the course of hisjudgment,--"Under the circumstances it is not surprising that therespondents were not able to find the money on the stipulated day, andthereupon the present appellant presented a petition for realisation of hisentire decree. by - sale of the mortgaged properties." He goes on to say,in describing what had been done by the learned Subordinate Judge who accededto the application,-- The learned Subordinate Judge in the first instance gavethe appellant execution for the whole amount of his decree; so that, at anyrate it appeared to the Privy Council and to Lord Davey in that case that anapplication for an order for sale was a petition for realisation by themortgagee of his decree.

7. Now this case falls within the provisions either ofArticle 183 or Article 181 of the Limitation Act--it does not fall within theprovisions of Article 182. Article 183 deals with an application to enforce ajudgment, decree or order of any Court established by Royal Charter in theexercise of its Ordinary Original Civil Jurisdiction or an order of HisMajesty in Council," and provides a period of 12 years from when a presentright to enforce the judgment, decree or order accrues to some person capableof realising the right. If this case comes within Article 183, it is free fromthe embarrassment of the conflicting decisions which have arisen under Article182. If and so far as this can be regarded, in the words of Lord Davey, as"an application for realisation of a decree," it is not unfair tosay that it is an application to enforce a judgment. The word "enforce"has a fairly obvious meaning. We have been referred to. one or two dictionariesas to what its meaning is:--but I take it to be clear, even apart from thedictionaries, that the word "enforce" is not limited to realisationby execution but may have a wider meaning. So, even if it can be said that thepresent proceeding is not strictly in execution but is a form of judicialrelief under a decree, it still would legitimately come within the expression"to enforce a decree",--and it seems to be manifest that it is eithera proceeding in execution or a proceeding for judicial relief under a decree:and I see no reason why Article 183 should not apply. If that be so, then itfollows that this application is out of time.

8. I do not propose to make more than a passing reference tothe argument that has been addressed to us in relation to Article 181.

9. There have been brought to our notice numerous cases onArticle 181 and Article 182,--Articles 178 and 179 of the former Limitation Actwhich they reproduce, with a view to showing that these articles did not applyin the past to an application under section 89 of the Transfer of Property Act,and that by parity of reasoning they could not govern applications under thesubstituted provisions of Order XXXIV of the Code of Civil Procedure. In thisconnection it has been a matter of argument and of considerable contest beforeus as to whether this case is to be decided by reference to the old Code andthe old Limitation Act, or by reference to the new Code and the new LimitationAct, both of which came into operation on the 1st of January 1909. If the viewI have expressed as to the application of Article 183 be right, no question ofthis kind arises inasmuch as the plaintiff in 1886 obtained a decree whichrequired no supplemental decree, but required only an order. Had the decreebeen an incomplete one and required a further decree, then, having regard tothe way in which Acts in reference to procedure are to be construed, possiblythe provisions of the present Code would have been applicable. But, be that asit may, I fail to follow the line of reasoning which would suggest that Article181 would still not have presented a bar to the application for this furtherdecree. One object in view when the present Code was passed was to end, as furas possible, the conflict of decisions which embarrassed the Courts, and amongthose conflicting decisions were those which dealt with two points,--first ofall whether an application for an order under section 89 of the Transfer ofProperty Act was an application in execution or not: and secondly, whether, ifit was not an application in execution Article 181 constituted a bar on theground that the application who One not contemplated by the Code of CivilProcedure. Those were not the only points that were sought to be set at rest,but those were prominent among them: and the Act indicates that the schemewhereby these two gets of conflicts were to be composed was, in the firstinstance, by making it clear that an application which was to follow on apreliminary decree for sale, was not to be an application in execution,inasmuch as the next step under Order XXXIV, rule 5 is not for an order forsale but for a decree for sale: and the mode in which the other conflict wascomposed was by taking the provisions as to mortgage suits out of the Transferof Property Act and bringing them within the Civil Procedure Code, so that itwould no longer be possible to contend that Article 181 applied on the groundthat these applications are not under the provisions of the Civil ProcedureCode. I am aware that there is an opinion expressed in Madhab Moni Dossi PamelaLambort : 15 C.W.N. 337 : 6 Ind. Cas. 537 [LQ/CalHC/1910/233] , which it may bedifficult to reconcile with this, but it is not a decision, for as I read thejudgment in that case, the learned Judges expressly refrained from deciding thepoint which was a necessary preliminary to its becoming a point calling foractual decision. It could only be a point for decision if and when it wasdecided, that the new Code applied. But so far from there being any suchdecision, the learned Judges, not only expressly refrained from deciding this,but the decision actually passed by them in effect negatived the view that thecase fell under the new Code, for in conformity with the terms of theapplication out of which the appeal arose they decided that there should be anorder absolute and not a final decree for foreclosure. I have referred to thismatter, as I desire for future consideration when the point actually arises fordecision whether or not Article 181 presents a bar to an application for afinal decree, whether it be under rule 5 or rule 3 of Order XXXIV when thatapplication is made beyond the time contemplated in Article 181, for as yetthere has been no actual decision on this point in the view I take of the casereported in Madhab Moni Dossi v. Pamela Lambort : 15 C.W.N.337 : 6 Ind. Cas. 537 [LQ/CalHC/1910/233] . The result is that for the reason which I have indicatedin the earlier part of my judgment, I think Mr. Justice Fletcher rightlydecided that the present application was barred, and that, therefore, thisappeal should be dismissed with costs. Mr. U.L. Bose is entitled to a separateset of costs.

J.G. Wooddroffe, J.

I agree.

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Amolak Chand Parakvs. Sharat Chandra Mukherjee(20.07.1911 - CALHC)