Authored By : Lancelot Sanderson, H. Walmsley, Rankin, P.L.Buckland, Mookerjee, Lancelot Sanderson

Lancelot Sanderson, C.J.

1. This is a reference by my learned brother, Walmsley J.,and me to a Full Bench.

2. The facts of the case are set out in the referringjudgment, and it is, therefore, not necessary for me to state them again.

3. My learned brother and I decided that Article 183 of theLimitation Act of 1908 does not apply to the appellants application for adecree under Order XXXIV, rule 6 of the First Schedule to the Code of CivilProcedure, 1908.

4. We were of opinion that Article 181 is applicable, but wefound that there is a decision of a Division Bench of this Court, viz.,Bisivambhar Shaha v. Ram Sundar Kaibarta I. L. R. (1914) Cal 294, to the effectthat Article 181 does not apply to an application under Order XXXIV, rule 6.The basis of that decision was that, in a mortgage suit in which there has beena decree for sale and in which the plaintiff had his personal remedy at thedate of the institution of the suit, no exception by way of limitation wouldarise with regard to an application under Order XXXIV, rule 6 and that such anapplication is not covered by Article 181.

5. As my learned brother and I were unable to agree with thedecision in the abovementioned case, we referred the matter to a Full Bench.The reference is as follows:

This Court, therefore, having held that Article 183 of theLimitation Act does not apply to the appellants application for a decree underOrder XXXIV, rule 6, differs from the decision in the case of Biswambhar Shahav. Ram Sundar Kaibarta I. L. R. (1914) Cal. 294. upon the questions:

(i) Whether there is any period of limitation in"respect of an application for a decree under Order "XXXIV, rule 6.

(ii) Whether Article 181 of the Limitation Act "applies to an application under Order XXXIV, rule 6, Civil Procedure Code,where no other Article applies, and refers to the decision of a FallBench---the question whether the case of Biswambhar Shaha v. Ram. SundarKaibarta I. L. R. (1914) Cal. 294, so far as it decides that Article 181 of theLimitation Act does not apply to an application under Order XXXIV, rule 6,Civil Procedure Code, was rightly decided.

6. Having regard to the fact that my learned brother and Idecided that Article 183 did not apply and no question with respect theretohaving been referred to the Full Bench, it might be said that it was not opento the learned Counsel, who appeared for the appellant on the reference, toargue that Article 183 did apply. He submitted, however, that his argument wasthat Article 181 did not apply, because Article 183 did apply, and the learnedCounsel was allowed by the Court to argue the point.

7. The learned Counsel for the appellant admitted, in viewof the decisions of the Judicial Committee of the Privy Council, that it wasnot open to him to argue that there was no period of limitation as was statedin Biswambhar Shaha v. Ram Sundar Kaibarta I. L. R (1914) Cal 294; but heargued that the application for a personal decree under Order XXXIV, rule 6,was an application to enforce a judgment as being either a proceeding in executionor a proceeding for judicial relief under a decree, and consequently thatArticle 183 applied.

8. On behalf of the appellant reliance was chiefly placedupon the decision in Amlook Chand Parrack v. Sarat Chunder Mukerjee I. L. R.(1911) Gale. 913, which was affirmed by the Judicial Committee of the PrivyCouncil in Munna Lal Parrack v. Sarat Chunder Mukerjee I. L. R (1914) Cal. 77642 L. R. I. A. 88.

9. In the first place it is to be noted that the argument inthe abovementioned case was that the application was "free from the law oflimitation" to use the words o the learned Chief Justice; that is theargument which it has been admitted cannot now be supported.

10. In the second place, the learned Chief Justice s pointedout that the decree in that, case was in a "sense peculiar" for itincluded not only a decree for personal payment by the mortgagor but also aprovision for sale of the property in default of payment. It was assumed,however, for the purpose of the judgment, that the decree was within theTransfer of Property Act, and that it was a decree made under Section 88 ofthat Act; and the learned Chief Justice drew attention to the fact that if itwere a decree under Section 88 of the Transfer of Property Act no furtherdecree was necessary and that all that was required was, under Section 89, anorder for sale.

11. The conclusion arrived at was that the application forthe order for sale might be regarded as an application for the realisation ofthe decree, and that being so it was not unfair to say that it was anapplication to enforce a judgment as being a proceeding in execution or aproceeding for judicial relief under a decree.

12. It was not contended that the present case is governedby the Transfer of Property Act, and it was argued on the basis that the Codeof Civil Procedure is applicable.

13. It is, therefore, material to draw attention to theconcluding portion of the learned Chief Justices judgment in Amlook ChandParrack v. Sarat Chunder Mukerjee I. L. R. (1911) Cal. 913, 921, where hereferred to the alterations created by the Code of 1908, and to the termsthereof, whereby it is now provided that the application which follows, apreliminary decree is not for an order for sale, but for a decree for sale.

14. It is interesting to observe that in the report of thecase in the Judicial Committee of the Privy Council, 42 I. A. 88, at page 89,the interpretation placed upon that part of the learned Chief Justicesjudgment is as follows: The learned Chief Justice was also of opinion that ifthe decree had been an incomplete one, a farther decree being required, thenArticle 181 of the Act of 1908 would have barred the application, since thedifficulties of applying the corresponding Article of the Act of 1877 to anapplication for an order to sell had been removed in the case of Article 181 bythe provisions of the Code of Civil Procedure, 1908.

15. It is not necessary for me to express any opinion inthis case upon the question whether that is a correct interpretation of thelearned Chief Justices judgment, and I do not express any opinion.

16. It is, however, clear, in my judgment, that the decisionin the abovementioned case is not any authority for the proposition advanced onbehalf of the appellant that Article 183 applies to an application under OrderXXXIV, rule 6.

17. Further, it cannot reasonably be argued, in my judgment,that there is any analogy between an application for a final decree for saleunder Order XXXIV, rule 5(2), and an application for a personal decree againstthe mortgagor for the balance if legally recoverable under Order XXXIV, rule 6.

18. In the case of the final decree for sale, Order XXXIV,rule 5(2) provides that where such payment is not so made the Court shall, onapplication made in that behalf by the plaintiff, pass a decree that themortgaged property be sold and that the proceeds of the sale be dealt with asis mentioned in rule 4.

19. Rule 1 deals with the preliminary, decree for sale,which in itself contains a direction for the sale of the property if thepayment directed thereby is not made on or before the date specified in thedecree (see form 4 in First Schedule, Appendix D). In the case, therefore, ofan application for a final decree for sale, if it is made within the specifiedtime, it may be said that the Court is bound, as a matter of course, to makethe final decree for sale if the payment, which has been directed by thepreliminary decree, is not made, and that the Court is merely giving effect tothe order contained in the preliminary decree.

20. In the case of an application for a personal decreeunder Order XXXIV, rule 6, the position is different. The rule provides:

Where the net proceeds of any such sale are found to beinsufficient to pay the amount due to the plaintiff, if the balance is legallyrecoverable from the defendant otherwise than out of the property sold, theCourt may pass a decree for such amount.

21. On such an application the Court has to be satisfiedthat the balance is legally recoverable from the defendant otherwise than outof the property sold, and if so satisfied the Court may pass a decree for suchamount.

22. Form 11 of the First Schedule, Appendix D, is the formof a decree against the mortgagor personally. This read with the rule makes thepoint clear. The form contains the sentence and whereas it appears to thisCourt that the defendant is personally liable for the said balance.

23. For these reasons, in my judgment, the application underOrder XXXIV, rule 6, dated the 18th April 1923, was an application for a newdecree in the suit, and it cannot be said to be an application for enforcing ajudgment or decree within the meaning of Article 183, and consequently Article183 is not applicable to an application under Order XXXIV, rule 6.

24. It was admitted by the learned Counsel who appeared forthe appellant, that if Article 183 does not apply, Article 181 must apply.

25. In my judgment, therefore, there is a period oflimitation in respect of an application for a decree under Order XXXIV, Rule 6,and the answer to the question submitted to the Full Bench should be asfollows:

Article 181 of the Limitation Act does apply to such anapplication, and the case of Biswambhar Shaha v. Ram Sundar Kaibarta I. L. R.(1914) Cal. 294, in so far as it decided that Article 181 of the Limitation Actdoes not apply to such an application, was not rightly decided.

H. Walmsley, J.

26. I agree with my Lord the Chief Justice.

Rankin, J.

27. The special facts of this case need not be againdetailed, but the facts which give rise to the single question argued before usmay be stated as these:

28. That the suit is a suit brought in 1911 to enforce amortgage on the Original Side of this High Court. That by consent a preliminarydecree for sale was made therein which provided that if the money to arise bysuch sale should not be sufficient, the present appellant (mortgagee) should beat liberty to apply for a personal decree for the amount of the balance. Thatthe present appellant made his application for a personal decree some nineyears after the mortgaged property had been sold.

29. The application is made under Order XXXIV, rule 6 of theCode of 1908. Unless there is no period of limitation prescribed for such anapplication or Article 183 of the Limitation Act, 1908 applies, the presentappellant is clearly out of time. Learned Counsel on his behalf disclaims andrejects the contention that no period of limitation has been prescribed. Inthat view it is clear that the case falls either under Article 181 or Article183. If it falls under Article 181 the appellant is too late. It is contendedoh his behalf that it falls under Article 183, and this is the only contentionwhich he desires to raise.

30. I am of opinion that the terms of reference to the FullBench do not preclude us from deciding as to the correctness of thiscontention. Having regard to the frame of the Schedule to the Limitation Act,it would be quite impossible to hold that Article 181 is applicable withoutdeciding that Article 183 is not, or to hold (in the abstract) that there is aperiod of limitation prescribed without stating the Article or Articles bywhich it is prescribed. Whether it is ever right to decide a point of law on anhypothesis of law which may or may not be correct, may be doubted; but it,would not be right in this case. The alternatives are, to decide upon theapplicability of Article 183 or to make no answer to the reference. In myjudgment we have jurisdiction to decide the question and should do so.

31. The appellants argument is that an application underOrder XXXIV, rule 6, is an application to enforce the preliminary or finaldecree for sale. He supports this argument by citing decisions to the effectthat applications under Section 89 of the Transfer of Property Act for an orderabsolute come within the Articles of the Limitation Act which are now numbered182 and 183. This argument from analogy takes us to debatable land. This HighCourt for years held that Articles 182 and 183 did not apply to applicationsunder Section. 89. Other High Courts held that they did. In 1914, some yearsafter the present Code had altered the aspect of the question, the JudicialCommittee in two cases from Allahabad applied what is now Article 182 BatukNath v. Munni Dei (1914) I. L. K. 36 All. 284, and Abdul Majid v. Jawahir LalI. L. R. (1914) All. 350, [LQ/AllHC/1914/136] Lord Moulton in the latter case describing theapplication under Section 89 as being "for an order absolute to sell themortgaged properties;" in other words " for an order directingenforcement of "the order nisi ". Meanwhile, in 1911 this Court inAmlook Chand Parrack v. Sarat Chandra I. L. R. (1911) Cal 913, dealt with acase in which a mortgagee applied for an order absolute for sale some 23 yearsafter his suit had been decreed on the Original Side. The mortgageescontention was that the case was governed by the Transfer of Property Act, andthat there was no limitation whatsoever. Treating the case as one outside thepresent Code, Jenkins C. J. laid stress upon the fact that no further decreewas requisite, and that all that was required was an order for sale. Heregarded the application as a petition for realisation of the decree followingLord Davey in a previous case who had spoken of a similar proceeding as amatter of execution, i.e., as if Article 182 would cover it. It was heldaccordingly that in a High Court Article 183 would apply. This case wasaffirmed in very general terms by the Judicial Committee in 1914, very shortlyafter the decision in the Allahabad cases already mentioned. Munna Lal Parrackv. Sarat Chunder Mukerji I. L. R. (1914) Cal 776.

32. Now if there were good and reliable authority in casesunder Section 90 of the Transfer of Property Act for holding that applicationsthereunder were governed by the Articles now numbered 182 and 183, it would beunnecessary to trouble with analogies drawn from cases under Section 89. Whatwas provided for by Section 90 was a decree, and it has frequently been calleda supplementary decree. It is true that at different times in MadrasMallikarjunadu Setti v. Lingamurti Pantulu I. L. R. (1902) Mad. 244, and inAllahabad Durga Dai v. Bhagwat Prasad I. L. R. (1891) All. 356. Musaheb ZamanKhan v. Inayatulla I. L. R. (1892) Jill. 513. Ram Surup v. Ghaurani I. L. R(1899) All. 453, decisions have been given to the effect that an applicationunder Section 90 is an application in execution, but these decisions neverbecame accepted law, and decisions to the contrary were not lacking. In thecase of Puma Chandra v. Radha Nath (1906) 4 C. L. J. 141,148, these cases weredissented from, Mookerjee J. expressly stating that, "even if the viewmaintained "by the other High Courts as to the true nature of an"application under Section 89 were adopted, it seems to" me that anapplication under Section 90 stands upon "an entirely differentfooting". Curiously enough in Biswambhar Shaha v. Ram Sundar I. L. R.(1914) Cal. 294, the Court proceeded on the view that an application underSection 90 or rule 6 of Order XXXIV was exactly parallel to an applicationunder Section 89 or rule 3. Thereat question is which of these two views isright The Allahabad High Court in 1918 decided that Article 181 was applicableto Order XXXIV. rule 6, holding that such an application is one made in theoriginal suit for a new decree, and that it cannot be regarded as anapplication in execution. This is exactly the view taken by Mookerjee J. ofSection 90 in the case already cited, and in my opinion it is the correct view,both in substance and in form.

33. In India a mortgage does not necessarily import apersonal obligation to repay. Prima facie this obligation is present in simplemortgages, and of course, in English mortgages. Prima facie it is not presentin mortgages by conditional sale and in usufructuary mortgages. In each casethe question is one of construction of the mortgage instrument and the personalliability to repay may become barred before the right of recourse to themortgaged property is barred. In these circumstances a decree for sale made ina mortgage suit, unless it contains ah express decision as to personalliability, is not in any way an affirmation that such liability exists, or everhas existed. Even where it exists, the mortgagee is not in India allowed in asuit to enforce the security to have recourse to the personal covenant until hehas first exhausted the security, and given credit for its proceeds.

34. This is the real meaning of Section 90 and of rule 6 ofOrder XXXIV, and this is very different from a mere claim to have the decreefor sale enforced. Execution against the mortgagors person or against hisgeneral assets can not begin in the absence of any decision as to hisliability. To decide that he is personally liable is not to enforce or executea decree for sale. There seems to be no force in the contention that anapplication is to enforce a decree because it is made under a liberty to applyreserved by the decree. This is the substance of the matter but in form thereare, since the Code of 1908, still further difficulties in the way of theappellants contention. I take it to be quite clear now that in the subordinateCourts an application for final decree for sale is governed by Article 181 andnot by Article 182 cf. Gajadhar Singh v. Kishan Jiwan Lal :I. L.R (1917) All. 641, Saiyid Jowad Hussain v. Genda Singh I. L. R. (1922)Pat. 444. In Amlook Chands case I. L. R. (1911) Cal. 913, 921, Jenkins C.J.,whose authority is very special on this subject, observed: "One object inview when the present Code was passed was to end, as far as possible, theconflict of decisions which embarrassed the Courts, and among those conflictingdecisions were those which dealt with two points: First, whether an applicationfor an order under Section 89 of the Transfer of Property Act was anapplication in execution or not; and, secondly, whether, if it was not anapplication in execution, Article 181 constituted a bar on the ground that theapplication was one not contemplated by the Code of Civil Procedure. And so itis now provided that the application which follows a preliminary decree forsale, is not for an order for sale, but for a decree for sale. And with thesame end in view the provisions as to mortgage suits have been removed from theTransfer of Property Act to the Civil Procedure Code, so that it is no longerpossible to contend that these applications are not under the provisions of theCivil Procedure Code.

35. Now before one gets to Article 181 one must excludeArticle 182. How did the Code of 1908 settle in the negative the oldcontroversy as to whether Article 182 was applicable to Section 89 of theTransfer of Property Act Entirely by the new provision as to preliminary andfinal decrees: "A decree is preliminary when further proceedings have tobe taken "before the suit can be completely disposed of. It is "finalwhen such adjudication completely disposes "of the suit" (Section 2).Accordingly, when it was provided by Order XXXIV, rule 5, that the applicationwhich follows on a preliminary decree for sale is not for an order for sale butfor a decree for sale, all question of "execution" was removed. Itwas an undoubted part of the intentions of the Code of 1908 to prevent matterswhich might and should be decided in the suit from being left to Courts of execution.

36. It is now contended, as I understand, that applicationsfor final decree are not in the Subordinate Courts governed by Article 182, butthat in the High Courts they are governed by Article 183. Indeed, it is fromthis position that the whole argument on behalf of the appellant proceeds. Itis not easy to wedge so great a difference in result between the words"for the execution of a decree" and the words "to" enforcea decree." If a final decree for sale is necessary to dispose of the suit,the considerations applicable under Article 183, which allows for indefiniterevivor, seem strangely out of place. I am content to say that as at presentadvised I am in no way satisfied that Article 183 does apply in a High Court toan application for final decree under Order XXXIV.

37. I concur in the answers proposed by the Chief. Justice.

P.L. Buckland, J.

38. The substantial question to be decided, once thatlearned Counsel for the appellant has been permitted to argue, as has beendone, that Article 183 of the First Schedule to the Limitation Act isapplicable, is whether that Article or Article 181 prescribes the period oflimitation for an application for a decree under Order XXXIV, rule 6, of theCivil Procedure Code.

39. It was held by the Judicial Committee of the PrivyCouncil in Munna Lal Parrack v. Sarat Chunder Mukerji I. L. R. (1914) Cal. 776,that an application for an order absolute for sale under Section 89 of theTransfer of Property Act was within Article 183.

40. Order XXXIV, Rule 5 now takes the place of: thatsection, but in lieu of an order absolute it is provided that upon applicationmade in that behalf by the plaintiff, the Court shall pass a decree that theproperty be sold.

41. It is contended on behalf of the appellant that insubstance, there is no distinction between an application for a final decreeunder Rule 5 and an application for a personal decree under Rule 6 and that,therefore, upon the authority of the case cited above Article 183 applies.

42. For the respondent it has been argued that the law hasbeen altered by the Civil Procedure Code and that in consequence Manna LalParrack v. Sarat Chunder Muksrji (1) is no authority for the appellantscontention. There is no need to consider this aspect of the case, unless onefirst comes to the conclusion -that applications under Rules 5 and 6 are suchthat no distinction can be made between them for the purpose of deciding whichArticle is the correct one to be applied.

43. For the principles of the decision in Munna Lal Parrackv. Sarat Chunder Mukerji I. L. R. (1914) Cal. 770, [LQ/CalHC/1913/400] one must turn to thejudgment of Jenkins C. J. in Amlook Chand Parrack v. Sarat Chunder Makerjee I.L. R. (1911) Cal. 913, 921, which their lordships of the Judicial Committeeaffirmed by a judgment which is contained in a few lines of the report. Thereone finds: 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 to say thatit is an application to enforce a judgment as being either a proceeding inexecution or a proceeding for judicial relief under a decree.

44. The language used is wide and at first sight mightappear to cover the point with which we are now concerned. But if theappropriate rules of Order XXXIV are analysed, it becomes clear that theanalogy upon which the argument of the learned Counsel for the appellantdepends is barely superficial.

45. If an application under Rule 6 is to be regarded as anapplication to enforce the preliminary decree made under Rule 4, similarly toan application made under Rule 5, the relation which decrees made under Rules 5and 6 respectively bear to such preliminary decree becomes important. Thepreliminary decree proceeds upon the footing of rule 2, clauses (a), (6) and(c), and directs that in default of payment of the amount found due upon takingthe account the property shall be sold and the proceeds shall be applied inpaying such sum to the plaintiff. That decree is made after adjudication uponall questions which can be determined prior to a sale to be held for thepurpose of realising the security, and nothing, is left upon which adjudicationfor such purpose is requisite. Hence, it is only to be expected that it shouldbe provided by rule 5 (2) that the final decree shall be marie upon theplaintiffs application. Once the amount due has been ascertained and thedefendant is in default, nothing remains to be done, and the final decree forsale goes as a matter of course.

46. Though the relation of a decree under Rule 6 to the preliminarydecree under Rule 4 is by no means the same as that which the decree under Rule5 bears to the preliminary decree, yet the one has a relation to the other.That relation is due to the fact that by reason of the preliminary decree andproceedings; subsequently taken thereunder, the amount for which a personaldecree may be made has been ascertained. Moreover, excluding cases under OrderII, rule 2, in which the plaintiff has been permitted to postpone a suit on hissecurity, no personal decree may be made until the plaintiff has exhausted hisright under his security, and to obtain, it be must proceed as provided byOrder XXXIV.

47. A decree made under rule 6 involves that the saleordered by the final decree shall have taken place, for otherwise it would nothave been ascertained, "whether there was any balance still due whichcould form the subject matter of a decree under that rule. The preliminarydecree has been succeeded by the, final decree, and without the interpositionof the final decree no decree under Rule 6 for an ascertained sum could bemade. I do not overlook the fact that a decree-may take the form found in JeunaBahu v. Parmeshwar Narayan Mahtha (1918) 46 L. R. I. A. 294, but that does notaffect the point under discussion. It is clear that the position is not, assuggested, that of there being two coordinate, even if not wholly concurrent,methods of enforcing the preliminary decree.

48. But there is the further difficulty that a decree underRule 6 involves an adjudication upon matters which up to that point have notbeen determined, for it is not in every case of mortgage that the plaintiff hasa right to a personal decree. The sum due to him no doubt, has beenascertained, but for the purpose of a decree under Rule 6 matters have yet tobe determined which would not have been relevant to an adjudication upon theplaintiffs rights against the property. Upon such further adjudication as thecase may require, a decree under Rule 6 may be made, but that is not by way ofenforcing any existing judgment or decree. This to my mind is the explanationof the use of the word "may" in rule 6, which does not of itselfnecessarily exclude the application of Article 183.

49. The same comment may be made on the argument thatbecause the application is for a decree Article 183 cannot apply. Though theform of relief asked for may be a factor in determining the nature of theapplication, it is not the sole or a conclusive factor when the real questionis whether the application is to enforce an existing judgment or decree.

50. I concur with the learned Chief Justice in the repliesto be given to the questions referred.

Mookerjee, J.

51. The facts of the case which has given rise to thisreference are clearly set forth in the order of reference and need not berecapitulated. The question referred for our decision is whether the case ofBiswambhar Shaha v. Ram Sundar Kaibarta (1914) I. I. B. 42 Cal . 294, so far asit decides that Article 181 of the Limitation Act does not apply to anapplication under Order XXXIV, Rule (3, Civil Procedure Code, was rightlydecided. The learned Judges, who have made this reference, differed from thedecision in that case upon the following questions:

(i) whether there is any period of limitation in respect ofan application for a decree under Order XXXIV, rule 6; and

(ii) whether Article 181 of the Limitation Act applies to anapplication under Order XXXIV, rule 6, Civil Procedure Code, where no otherarticle applies.

52. Much of the contentions of the parties in this caseproceed upon the analogy or otherwise as between an application under OrderIII, Rule 5 (2), Civil Procedure Code, or rather what may be said to be itspredecessor, that is to say, Section 89 of the Transfer of Property Act, and anapplication under Order XXXIV, rule 6, Civil Procedure Code. Consequently, itis necessary to examine the state of the law as regards limitation whichrelates to the former.

53. There were conflicting decisions on the question as towhether an application for an order absolute for sale under Section 89 of theTransfer of Property Act was governed by Article 178 or Article 179 of theLimitation Act of 1877, or whether there was any period of J imitation for suchan application. These Articles corresponded to Articles 181 and 182 of theLimitation Act of 1908. The preponderance of authority was in favour of theview that such an application was not governed by any Article of the LimitationAct: see Ajudhia v. Baldeo I. L. R (1894) Cal. 318. Tilack v. Parsotein I. L.R. (1895) Cal. 924. Tara Prasad v. Bhobodeb I. L. R (1895) Cal. 931. (3),Akikunnissa v. Roop Lal I. L. R. (1897) Cal. 133. Ranbir v. Drigpal I. L. R.(1893) All 16. Mahabir v. Sital I. L. R. (1897) All. 520. Bai Manekbai v.Manekji I. L. R. (1830) 7 Bom. 213. For a contrary view reference may be madeto the cases of Oudh Behari v. Nageshar I. L. R. (1890) All. 278, Chunni v.Harnam I. L. R (1898) All. 302. Bhagawan v. Ganu I. L. R (1899) . 23 Bom. 644.The former view proceeded mainly upon three propositions---first, that such anapplication was not one under the Code of Civil Procedure to which only Article178 applied; secondly, that it relates to an action which the Court ought totake of its own motion whether the party applies or not; and, thirdly, that itis not an application for the execution of a decree, bacauseuntil the orderabsolute was made under Section 89 of the Transfer of Property Act there was nodecree capable of execution, and it was of the nature of an application in apending suit the cause of action for which arose from day to day until the suitwas at an end.

54. To take the last ground first, the Privy Council in thecase of Harendra Lal Roy Chowdhry v. Maharani Dasi (1901) L. R. 28 I. A. 89,took the view that an application under Section 89 was a petition forrealisation of the decree by the sale of the mortgaged properties. In so far asit could be so regarded, "it was", to quote the words of Sir LawrenceJenkins C. J., not unfair to say that it is an application to enforce ajudgment as being either a proceeding in execution of a decree, or a proceedingfor judicial relief under a decree: Amlook Chand Parrack v. Sarat ChunderMukerjee I. L R. (1911) Cal. 913, 921. This was a case in which the decree hadbeen passed by the High Court, and it was held in the case that the applicationcame under Article 188 of the Limitation Act of 1908-An appeal was preferred tothe Privy Council against this decision, but it was dismissed: Munna LalParrack v. Sarat Chunder Mukerji I. L. R. (1914) Cal. 776. An application foran order absolute under Section 89 has also been held by the Judicial Committeeto be an application for the execution of the preliminary decree or decree nisiunder Section 88, Batuk v. Munni I. L. R (1914) All. 284, [LQ/AllHC/1914/142] and Abdul Majid v.Jawahir Lal I. L. R (1914) All. 350, [LQ/AllHC/1914/136] and so governed by Article 179 of theLimitation Act of 1877; and in the latter case an application for an orderabsolute for sale under Section 89 was treated as an application for directingenforcement of the order nisi. The third ground, therefore, can no longer bemaintained as sound.

55. Then as to the second ground, if the application be onefor the execution of the decree nisi or for enforcement of a relief grantedthereby, it stands to reason that it is optional with a party to seek for it ornot. In this connection I entirely agree with the opinion expressed by Coxe J.in the case of Beni Singh v. Barhamdeo Singh (1915) 22 G. L. J. 66, where heobserved as follows: Under Order XXXIV, rule 5, the Co art not only is notbound, to proceed with the case but cannot do so unless an application is madeto it. The parties are at perfect liberty to drop the proceedings, and if theplaintiff prefers not to make an application, the Court has no jurisdiction todirect the sale.

56. As regards the first ground, the provisions as to themortgage suits having been removed from the Transfer of Property Act to theCode of Civil Procedure 1908, it is no longer possible to contend thatapplications of this class are not under the provisions of the Civil ProcedureCode.

57. Some of the results of the decisions of the JudicialCommittee referred to above may thus be summed up: The preliminary decree ordecree nisi passed under Section 88 of the Transfer of Property Act isexecutable; in order to obtain the order absolute under Section 89 steps haveto be taken in execution; and to such an application Article 182 or Article 183will apply as the decree happens to be of a mofussil Court or of the OriginalSide of the High Court Hussain v. Karim (2). The result attained by thetransference of the provisions of the Transfer of Property Act relating tosuits on mortgages into Order XXXIV of the Civil Procedure Code, 1908, and theamendments made, by requiring a decree for sale to be passed, in Order XXXIV,Rule 5 (2) instead of an order absolute for sale in Section 89, and thedistinction made in the explanation to the definition of "decree " ascontained in Section 2 as between a preliminary and a final decree has been tomake, in the case of a mofussil decree, Article 181 applicable, instead ofArticle 182, to an application for a decree for sale under Order XXXIV, Rule 5(2), Civil Procedure Code, such an application being an application in the suitfor a final decree and not an application for execution Gajadhar Singh v.Kishan Jewan Lal : I. L. R. (1917) All. 641.

58. Similar conflict existed as to the period of limitation,if any, for a decree for the balance under Section 90 of the Transfer ofProperty Act. In Allahabad the view was taken that an application to obtain adecree under Section 90 cannot by any straining of language be considered to bean application for the execution of a decree under Section 88, that it is anapplication for a subsidiary decree, that it is undoubtedly an application inexecution proceedings but is not an application for the execution of theprincipal decree, and that Article 178 of the Limitation Act of 1877 applied toit: Ram Sarup v. Ghaurani (1899) I. L. K. 21 All 453, and the cases cited inthe judgment in that case. In Muhammad Iltifat Hussain v. Alimannissa: I. L. R. (1918) All. 551, it was held that an applicationunder Order XXXIV, rule 6, Civil Procedure Code, is not one for the executionof the original decree for sale, but is an application in the original suit fora new decree. This Court in the case of Rahmat Karim v. Abdul Karim I. L. R.(1907) Cal 672, held that that Article was not applicable as the applicationwas not under the Civil Procedure Code. In the case of Biswambhar Shaha v. RamSundar Kaibarta I. L. R (1314) Cal . 294, which was a case decided under theCode of 1908, it was contended that the decision in the case of Rahmat Karim.v. Abdul Karim I. L. R. (1907) Cal. 672, could no longer be regarded as good,in view of the transference of the provisions relating to mortgage suits fromthe Transfer of Property Act to the Civil Procedure Code in 1908. Thiscontention was overruled on the authority of certain observations contained inthe decision of Madhabmani Dasi v. Pamela Lambert I. L. R (1910) Cal. 796. Inthat case it was laid down that previous to the passing of the Limitation Act(IX of 1908) and the Civil Procedure Code (V of 1908) there was no rule oflimitation applicable to an application for order absolute of a decree nisimade under Section 86 of the Transfer of Property Act (IV of 1882), that theLimitation Act (IX of 1908) does not profess to provide for all kinds ofapplications whatsoever, that it does not apply to an application to a Court todo what the Court has no discretion to refuse, and that it is not applicable toan application to the Court to terminate a pending proceeding the final orderin which had been postponed for the benefit of the defendant or the convenienceof the Court. As regards these propositions it may be observed that the reasonsthat were given by the learned Judges as to why the Limitation Act (IX of 1908)should not be taken as applying to an application of this nature can no longerbe regarded as sound in the view that has been taken of an application underSection 89 as mentioned above, with regard to which it used to be held uponsimilar-reasons at one time that no period of limitation was applicable. Thejudgment in the case, after expressly-stating that it was not necessary todecide whether the-Civil Procedure Code and the Limitation Act of 1908 appliedto the case or not, went on to lay down that Article 181 of the Limitation Actof 1908 did not govern an application for order absolute under Order XXXIV,rule 3 of the Civil Procedure Code of 1908. This part of the decision,therefore, was clearly obiter. The learned Judges who decided the case ofBiswambhar Shaha v. Ram Sundar Kaibarta (2) I. L. R. (1914) Cal. 294, were ofopinion that what had been held in Madhabmani Dasis case I. L. R (1910) Cal.796, to apply to Order XXXIV, rule 3, was also applicable to Order XXXIV, Rule6, as both the cases were strictly parallel and the rule of law and justicewhich was the ratio decidendi applied equally to both the cases. The decisionin the case of Biswambhar Shaha v. Ram Sundar Kaibarta I. L. R (1914) Cal. 294,is founded upon the observations in Madhabmatii Basis case (2), m to which Ihave already referred and which for the reasons I have given cannot now be regardedas sound.

59. Thus, then, we arrive at the conclusion that it is nolonger possible to contend that there is no period of limitation for anapplication under Order XXXIV, Rule 6, just in the same way as it cannot becontended that there is none for an application under Order XXXIV, Rule 5 I. L.R (1910) Cal. 796. The application is governed by the Limitation Act; andSection 89 of the Civil Procedure Code not applying to it, Article 181. wouldapply unless some other Article applies.

60. Sir Benode Mitter appearing for the appellant concededthat he was unable to contend that there was no period of limitation in respectof an application for a decree under Order XXXIV. Rule 6. He, however contendedthat Article 181 was not applicable, because Article 183 applied to the case.

61. The question referred to us is not whether the decisionin Biswambhar Shahas case I. L. R (1914) Cal. 294, in so far as it decidesthat there is no period of limitation for such -an application, is right. Ifthat was the question, we might have answered it without any furtherdiscussion. The question is, whether that decision is right in so far as itsays that Article 181 does not apply, To decide this question, we must gofurther and decide whether Article 183 applies or not; for Section 48, CivilProcedure Code, admittedly not applying, we must find that no other Articleapplies, and Article 183 is said to be the only Article which applies.

62. Article 183 runs thus: To enforce a judgment, decree ororder of any Court established by Royal Charter in the exercise of its OrdinaryOriginal Civil Jurisdiction or an order of His Majesty in Council.

63. To attract the operation of this Article there must be ajudgment, decree or order capable of being enforced; and the real question,therefore, is whether an application for a decree under Order XXXIV, Rule 6, isone for enforcing the preliminary decree passed under Order XXXIV, Rule 4. Itis contended that the relation between a decree under Rule 4 and one underRule 5 (2) is the same as between a decree under the former rule and one underRule 6, and it is urged that if an application for a decree under Rule 5 (2)[may be regarded as one for enforcement of the judgment or decree under Rule 4,as it must be in view of the decision in Amlook Chand Par rack v. Sarat ChunderMukerjee I. L. R. (1911) Cal. 913, affirmed by the Judicial Committee in MunnaLal Parrack v. Sarat Chunder Mukerji I. L. R. (1914) Cal. 776, an applicationfor a decree under Rule 6 must also be similarly regarded. It is urged that ifthere is no liberty reserved in the preliminary decree for applying for adecree for the balance, that relief must be treated as having been refused andwould be barred in view of Section 11, Expl. 5 of the Code; and that, therefore,when the mortgagee makes the application for a decree under Rule 6, heexercises the liberty granted to him by the judgment or decree previouslypassed, and is, therefore, enforcing the same.

64. Now, we are not concerned in the present case with a decreeof the character that was before the Judicial Committee---a combined decree notfollowing the forms in the Appendix in the First Schedule to the Code---in thecase of Jeuna Bahu v. Parmeshwar Narayan Mahtha I. L. R. (1918) Cal. 370, andwe are not in the present case concerned with those considerations which may,perhaps, arise in the case of such a combined decree. The relevant passage inthe decree before us runs in these words: And it is further ordered with a likeconsent that if the money to arise by such sale shall not be sufficient for thepayment in fail of the amount payable to the plaintiff and the defendant HarryJones under this decree, the plaintiff or the defendant Harry Jones as the casemay be shall be at liberty to apply for a personal decree for the amount ofthe balance.

65. Now the forms prescribed in the Appendix D of the FirstSchedule of the Civil Procedure Code for a preliminary decree for sale and adecree for balance are respectively forms Nos. 4 and 11.

66. Form No. 4 runs thus: It is hereby declared that theamount due to the plaintiff on account of principal, interest and costscalculated up to the day of 19 is Rs (sic) and that such amount shall carryinterest at the rate of per cent, per annum until realisation; and it isdecreed as follows:

(i) That if the defendant pays into Court the amount sodeclared due on or before the said day of 19, the plaintiff shall deliver up tothe defendant, or to such person as he appoints, ah documents in his possessionor power relating to the mortgaged property, and shall, if so required,retransfer the property to the defendant free from the mortgage and from allincumbrances created by the plaintiff or any person claiming under him (wherethe plaintiff claims by derived title add or by those under whom lie claims.)("Where the plaintiff is in possession add and shall put the defendant inpossession of the property.)

(ii) That if such payment is not: made on or before the saidday of 19, the mortgaged property or a sufficient part thereof be sold and thatthe proceeds of the sale (after defraying there out the expenses of the sale)be paid into Court and applied in payment of what is declared due to theplaintiff as aforesaid together with the subsequent interest and subsequentcost, and that the balance, if any, be paid to the defendant.

(iii) That if the net proceeds of the sale are insufficientto pay such amount and such subsequent interest and costs in full, theplaintiff shall be at liberty to, apply for a personal decree for the amount ofthe balance.

67. Form No. 11 runs thus: Whereas the net proceeds of thesale held under the final decree for sale passed in this suit on the day of 19,and now in Court to the credit of this suit, amount to Rs. Y and there is nowdue to the plaintiff the sum of Rs. X mentioned in the said decree togetherwith the further sum of Rs. ...interest thereon at the rate of 6 per cent perannum from the day of 19 to this clay, and also the sum of Rs. for his costs ofthis suit subsequent to the decree, making a balance due to the plaintiff ofRs. Z. And whereas it appears to this Court that the defendant is personallyliable for the said balance:

68. It is hereby declared as follows:

(i) That the said gum of Rs. Y be paid out of Court to theplaintiff.

(ii) That the defendant do pay to the plaintiff the said sumof Rs. Z with interest thereon at the rate of 6 per cent, per annum from thisday to the date of realisation of the said sum.

69. It is clear from these forma as well as from the rules4, 5 and 6 of Order XXXTV that the decree passed under Rule 4 directs that indefault of the defendant paying in accordance with the decree mentioned inclauses (a),(b) or (c) of rule 2, the Court shall pass a decree for sale andalso directing that in default of the defendant paying as mentioned therein,the mortgaged property or a sufficient part thereof be sold and the directionthus given takes effect on the happening of the contingency, and when thecontingency happens it is obligatory on the Court to pass a decree under Rule5(2). Under a decree passed under Rule 4 a liberty is also reserved to theplaintiff to apply for a decree under Rule 6. When such an application is made,the question whether such a decree should or should not be passed has to bedecided. It is not as if the latter decree has to be passed as a matter ofcourse; it has to be found that the net proceeds of the sale held under thedecree under Rule 5 are insufficient and that the balance is legallyrecoverable; and this may give rise to such questions as whether the mortgagoris under a personal liability or whether the mortgagee is not precluded by theterms of the mortgage from realising his dues otherwise than out of theproperty sold or whether the right to enforce such liability has been extinguishedby the statute of limitations at the time the suit was instituted. Therelations, therefore, as between decrees under Rule 4 and under Rule 5 (2) andas between decrees under the former rule and under Rule 6 are fundamentallydifferent. In one case it is an enforcement of the decree or the judgmentpreviously passed, and in the other case though the mortgagee comes under thedecree to avail of a liberty, he seeks to obtain something which the previousdecree did not give him. He comes to enforce a right or seek a relief which hehad independently of the previous decree. He conies under the previous decreeonly in the sense that the right or relief has been put off by it until thehappening of certain events. Seeking to avail of a liberty for applying for arelief is different from enforcing a judgment or decree, the judgment or decreenot having granted the relief but only the liberty to apply for it.

70. As regards the contention that the right is created bythe decree because in the absence of a liberty reserved thereby the right tomake an application for a decree under Rule 6 is lost to the mortgagee, thereis authority for the proposition that the Court cannot refuse an order underthis rule simply because no provision is made for it in a decree for sale:Sonatun v. Ali I. L. R. (1889) Cal. 423. Musaheb v. Inayatulla I. L, R. (1892)All. 513. These cases were decided when Expl. (iii) to Section 13 of the CivilProcedure Code of 1882 corresponding to Expl. (V) of Section 11 of the presentCode was in force. This explanation, in my opinion, does not stand in the way,for the proper time for granting the relief according to the rules is onlyafter the conditions requisite for a decree under Rule 6 come into being. Theposition, of course, would be different if the issue has been considered andthe relief granted or refused at the time of the first decree. For thesereasons 1 am of opinion that the application is not one for enforcing a decreeor judgment or order and is not governed by Article 183.

71. That being so, in my opinion, Article 181 must apply tosuch an application; and in so far as the case of Biswambhar Shaha v. RamSundar Kaibarta I. L. R. (1914) Cal 294, decided that it did not, it was notrightly decided.

Lancelot Sanderson, C. J.

72. The result is that in pursuance of the provisions ofrule 2, Chapter VII, of the High Court Rules, we return the case with anexpression of our opinion upon the point of law referred to the Full Bench forfinal adjudication by the Division Court which referred it.

73. The appellant must pay to the respondent her costs ofthis reference.

.

F. H. Pell vs. M.Gregory (21.04.1925 - CALHC)