Authored By : Sale, Francis Maclean, Macpherson, Trevelyan

Sale, J.

1. The plaintiff, who sues as widow and representative ofher late husband, Radhajeebun Mustaba, claims administration and other reliefin respect of the estate of one Brojo Nauth Dey, deceased.

2. The defendant Thackomoni Dassi is the widow andrepresentative of Brojo Nauth.

3. The facts upon which the plaintiff bases her claim foradministration are set out in her plaint, and as to these allocations there isin substance now no dispute By consent the case was heard on settlement ofissues, and the question really resolves itself into this: Whether theplaintiff, on the facts she alleges in her plaint, is entitled to a decree foradministration of Brojo Nauths estate.

4. The material facts relating to that issue are, I think, asfollows:

5. Brojo Nauth Dey, on the 6th April. 1880, executed amortgage in the Bengalee language and character in favour of RadhajeebunMustafi, whereby he mortgaged his undivided 2 annas 2 gundahs and 10 cowriesshares in three zemindary properties which may be described as lot 1 BankraBudarpore, lot 2 Sheakhala and lot 3 mouzah Begumpore, to secure payment toRadhajeebun of Rs. 10,000 and interest.

6. On the 22nd April 1882 Radhajeebun Mastafi instituted asuit in the Courts of the Subordinate Judge of Hooghly against Brojo Nauth Deyfor recovery of Rs. 10,000 and interest duo under and by virtue of the saidmortgage. It appears that at the time the suit was instituted Brojo Nauth Deywas dead, though the fact apparently was unknown to the plaintiff. However, thesuit was revived in the name of his widow Thackomoni, and on the 29th September1882 the plaintiff, Radhajeebun, obtained a decree for Rs. 14,928-10-6 withinterest and costs against the defendant, the decree directing that the sumfound duo should be realised from the properly mortgaged and other propertiesof the defendant.

7. On the 12th July 1883 an application was made by theplaintiff, Radhajeebun in the Hooghly Court, for execution. On the 27th July1883 an order was made directing that the decree, with certificate ofnon-satisfaction, he transferred to this Court, on the ground that theproperties mortgaged were in the possession of the Receiver of the High Court.The records of the suit and the certificate were subsequently transferred bethis Court some time in the year 1884.

8. On the 8th September 1886 the plaintiff, RadhajeebunMustafi, applied to this Court for execution by attachment of the mortgagedproperty, i.e., the share of Brojo Nauth, in the three properties which I have mentioned,and after notice, and in the same year, an order was made for attachment ofthose properties by issue of a notice under Section 272 of the Code of CivilProcedure, to the Receiver of this Court, in whose possession the propertiesthen were.

9. Radhajeebun Mustafi died on the 17th April 1892, leavingthe plaintiff his sole widow and heiress. The plaintiff obtained letters ofadministration to the estate and effects of her husband on the 4th July 1892.Thereafter and on the 20th August 1894 she applied to this Court for an orderabsolute for sale of the mortgaged premises under Section 89 of the Transfer ofProperty Act. Notice was directed to issue to the defendant, and accordingly onthe 29th August a summons was obtained, returnable on the 5th September 1894,and was served on the defendant on the 31st August 1894. The application wasmade (sic) 10th and 13th December 1894, and on the 5th January 1895 theapplication was refused, on the ground that the Court had no jurisdiction to(sic) with the mortgaged property, inasmuch as it was situate wholly outsideterritorial jurisdiction of this Court.

10. (sic) step, save the application for execution whichresulted in the issue of a (sic) under Section 272 of the Code to the Receiver,and the subsequent (sic) for an order absolute for sale under Section 89 of theTransfer of Property Act, has been taken with the object of giving effect tothe decree obtained on the 29th September 1882 in the Court of the SubordinateJudge of Hooghly. While these steps were being taken in the mortgage suit, andprevious thereto, proceedings were instituted and carried on with the object ofobtaining partition of the joint family properties, of which the threezemindaries I have mentioned formed a part. The suit for partition of the jointfamily properties was, instituted in this Court on the 18th February 1880, andis numbered suit No. 119 of 1880. In that suit Monmohinee Dassee is theplaintiff, and Brojo Nauth Dey was one of the defendants, On the 2nd April 1881a decree was obtained by which Brojo Nath Dey was declared entitled to 901900of the joint family property, and a partition was directed to be made in theusual terms.

11. The Receiver of this Court was appointed Receiver of thejoint family properties on the 26th May 1881. Subsequently a supplemental suitwas filed by some of the members of the joint family against the presentdefendant as the representative of Brojo Nauth Dey, and by the decree made inthat suit it was declared that the share of Brojo Nauth Dey, in the jointfamily estate, was indebted to the members of the family other than Brojo NauthDey in the sum of Rs. 59, 975-11-5, Several separate returns were made by theCommissioners of partition in pursuance of the decree for the partition of thejoint family property; and, finally, on the 22nd June 1894 the sole survivingCommissioner made a separate return, whereby he partitioned the zemindaryproperties, including the properties the subject-matter of the mortgage infavour of Radhajeebun Mustafi.

12. By that return the entirety of one of the mortgagedproperties, lot Bankra Budarpore, was allotted to the present defendant, butthe other zemindary properties, which to the extent of the share of Brojo NauthDey, had been mortgaged to Radhajeebun Mustafi, were allotted to other membersof the family.

13. Another suit, based on a mortgage executed by BrojoNauth Dey in favour of one Lall Behary Dutt, was instituted in the year 1882 inthis Court (being suit No. 155 of 1882), and in that suit a mortgage decree, inthe usual terms, was made on the 23rd of July 1883. One of the propertiescovered by the decree made in suit No. 155 of 1882 is the share or interest ofBrojo Nauth Dey in the zemindary lot Sheakhala, which is one of the propertiesincluded in the mortgage in favour of Radhajeebun Mustafi; and it appears thaton the 6th December 1894 an order was obtained in the suit last mentioned,viz., suit No. 155 of 1882, for sale of so much of the Immovable propertiesallotted to the defendant by the three separate returns, dated 5th May 1888,16th June 1888, and 22nd June 1894, as would be sufficient for the payment(inter alia) of the amount due to Ball Behary Dutt under his mortgage decree.Having regard to these various circumstances, the plaintiff alleges that shehas been unable to obtain payment of the amount due to her under the decree ofthe 29th September 1882, and she therefore claims to be entitled toadministration of the estate of Brojo Nauth Dey, with the object, in the courseof that administration, of obtaining payment of the sum so due to her. As partof the relief she seeks in this suit she asks for a declaration of whatproperties are now subject to Radhajeebuns mortgage, and for an account ofwhat is due to her under the said mortgage and decree, and what is due to theother incumbrancers and creditors of the estate; for the sale of suchproperties, as may be found subject to such mortgage, declaration ofpriorities, and so forth.

14. After the institution of the suit in the Court of the SubordinateJudge of Hooghly, and prior to the decree obtained in that suit, the Transferof Property Act came into force. Therefore one of the questions which arises isas to whether the decree made on the mortgage executed in favour of RadhajeebunMustafi is in its terms a decree such as is contemplated by the provisions ofSection 67 of the Transfer of Property Act, or whether, on the other hand, thedecree is governed by Section 99 of that Act

15. Mr. Pugh, who appeared on behalf of the plaintiff, contendedthat the main question in this suit is whether the plaintiff is, on the factsstated in the plaint, entitled to a decree for the administration of the estateof Brojo Nauth Dey, The other relief sought in this suit involves admittedlyserious questions, but it is contended that they would arise only at asubsequent stage of the suit, and do not affect, the plaintiffs right to adecree for administration.

16. On the part of the defendant several objections wererelied upon as constituting a bar to the suit. In tire first place it is saidthat the matters in issue or sought to be raised in issue in this suit are thesame as those which were in issue in the former suit, and that the plea of resjudicata applies under Section 13 of the Civil Procedure Code. In the nextplace it is contended that the suit is not maintainable, having regard toSection 244, Clause (a) of the Civil Procedure Code.

17. The latter Section provides that certain questions shallbe determined by order of the Court executing a decree and not by separatesuit. Amongst those questions are included, by Clause (c), questions relativeto the execution, discharge or satisfaction of the decree, and the contentionis that, inasmuch as the object of obtaining administration of Brojo Nauthsestate is to obtain satisfaction of the judgment debt, the right of thejudgment-creditor is limited or restricted by this Section to proceedings inexecution.

18. I am not prepared to say that either of these objectionsis well founded, so far as the question of the right to administration isconcerned. The issue, or at least the main issue, which is sought to be raisedin the present suit, was not as a fact raised in the former suit, and I havenot been referred to any authority for the proposition that a creditor who hasonce obtained judgment upon his debt is thereby debarred from coming to a Courtof Equity, and asking to have this debt paid to him in due course ofadministration. It is true that before a creditor is entitled to administrationof his debtors estate he must show that he has a debt which is unsatisfied,and of which he is unable to obtain payment; and it is also true that the debtwhich is the foundation of the present action is in reality the debt which wasthe matter in issue in the former suit. But the present suit does not seek toput in issue the fact of the existence of the debt; on the contrary, theplaintiff relies on the former decree to show that no such issue can arisebetween the parties in the present suit. Besides, I am unable to see why onprinciple a creditor who has obtained a judgment on his debt, should be in aworse position, he far as a right to administration is concerned, than acreditor whose debt is unsecured by judgment.

19. As regards Section 244, Clause (c) of the Code, I shouldbe inclined to hold that the words "questions relating to the discharge orsatisfaction of the decree" must be limited to questions of discharge orsatisfaction arising in course of execution, or in connection therewith. Icannot think that a provision appearing in the chapter of the Code, relating tothe execution of decrees, was intended to limit or cut down the jurisdiction ofthis Court in granting administration. A Court of Equity, in executing adecree, does not necessarily proceed upon the same principles as those which itadopts in administering the estate of a deceased debtor. The foundation of thejurisdiction in the latter case, that is, in administering the estate of adeceased debtor, is said to be the principle which is applied in enforcing theexecution of trusts, the executor or administrator of the deceased debtor beingregarded as a trustee who is bound to apply the debtors estate in payment ofhis debts---Story, Eq. Jur., 2nd Edition (English), p. 352.

20. But a more formidable objection to the present suitremains to be considered, vis., the plea of limitation. A creditor to beentitled to ask for administration of his debtors estate must show either thathe has a debt which is enforceable by suit, or that he has obtained a judgmentthereon, which is itself capable of enforcement by execution or by separatesuit.

21. The plaintiff in the present case is ajudgment-creditor, her judgment having been obtained on the 29th September1882, i.e., more than 12 years from the date of institution of the presentsuit. Moreover, the decree is not a decree of this Court, but it is a decree ofa mofussil Court, and no step in execution, strictly speaking, of the decreehas been taken since the attachment through this Court under Section 272 of themortgaged properties in the hands of the Receiver.

22. Having regard to this fact, can the decree he consideredas still alive for the purposes of execution I am of opinion that it cannot.Mr. Pugh has contended that the attachment is still in full force and effect;and that, inasmuch as this suit may be said to be in aid or in continuation ofthat attachment, limitation cannot apply. I cannot adopt this view. Theproperties attached, being the mortgaged properties, could not be brought tosale under the attachment, and the only way of enforcing the lien on themortgaged property, or the property which had been substituted for it, was, itseems to me, by a suit under Section 67 of the Transfer of Property Act, Itwould, I think, he impossible to say that an attachment made under thecircumstances above-mentioned, and which attachment must, so far as I can see,remain ineffective and infructuous, is still sufficient to keep the decreealive indefinitely. The recent decision of this Court in the case of ChundraNath Dey v. Burroda Shoondury Ghosa I.L.R. 22 Cal. 813 [LQ/CalHC/1895/56] is an authority forsaying that the decree in execution of which the attachment was made is not inthe form contemplated by Section 67 of the Act, and that the attachment wouldtherefore be governed by Section 99 of the Act. Moreover, if the present suitcould be said to be a step in aid of that attachment in any sense, then I seeno answer to the argument that Section 244, Clause (c) of the Code constitutesa bar to the plaintiffs present suit. For the reasons I have alreadyindicated, I am not inclined to hold that a suit for administration by ajudgment-creditor is a step in execution, or in aid of execution of his decree.

23. But even if it were, I do not see how this argumentwould assist the plaintiff, because the effect of the order for execution toissue made by this Court, after notice, was not to revive the original decree,inasmuch as that is not a decree of this Court, and therefore no new period oflimitation runs from the date of the attachment. See the case of Tincowrie Dawnv. Debendra Nath Mookerjee I.L.R. 17 Cal. 491. On the other hand, the effect ofSection 230 of the Code is, in my opinion, to render this judgment debt abarred debt in every respect, because no step in execution can now be taken,nor can the decree be revived.

24. The case of Hebblethwaile v. Peever I. L. R. (1892) 1 Q.B. 125 seems to show that a judgment debt, which has become barred, cannot bemade the foundation of a subsequent proceeding to recover the debt, nor can acreditor, who has allowed his judgment debt to become barred, obtain anadjudication in bankruptcy against his debtor; Ex-parte Tynte (I. L. R., 15125).

25. It would seem to follow that a judgment debt once barredis barred for all purposes, and cannot therefore be made the foundation of anadministration action.

26. It is said, however, that the plaintiffs mortgage lienis still subsisting, and may be enforced as a collateral security for thejudgment debt.

27. Assuming that to be so, the lien would be enforceableonly as against specific properties, and would be available for the exclusivebenefit of the plaintiff and not of the general body of creditors. This specialand exclusive right, if it exists, would form no ground for the administrationof the general estate of the debtor; and further, if the lien is stillenforceable by suit, it does not appear that this Court would have jurisdictionto entertain any such suit, inasmuch as the original mortgaged properties, and theproperty which, under the separate return made in respect of the zamindaryproperties, was apparently allotted to Brojo Naths estate in substitution ofthe undivided shares in the zemindaries mentioned in the mortgage deed, arealike situate outside the ordinary original jurisdiction of this Court.

28. For these reasons it seems to me that the plaintiffsmortgage debt and the decree which was obtained in respect thereof are alikebarred; and, consequently, I must hold that this suit, which is founded on thatdebt, must be also barred, and cannot therefore be maintained.

29. The suit must therefore be dismissed with costs on scale2.

30. From this decision the plaintiff appealed.

31. Mr. Pugh (with him Mr. Evans Pugh) for the appellant.--The plaintiffs right as a mortgagee is still subsisting; and therefore she hasundoubtedly a right to maintain a suit under Sections 67 and 99 of the Transferof Property Act. The right to bring such a suit could only be maintained byestablishing the fact that her rights under the mortgage are still subsisting.As to her right to claim administration in respect of the mortgage, she wouldbe proceeding, not simply against the property actually included in themortgage, but also against the general estate or an unascertained part of it.The suit is not for administration only; it is also for enforcement of themortgage. If the plaintiff were not entitled to administration and to judgmentunder the administration, then she could ask for a decree in the suit as upon amortgage. With regard to the jurisdiction, also, the suit is not brought withreference to the mortgaged property only, but also to the rest of the estate, alargo portion of which is in Calcutta.

32. Again, the plaintiff has a right to maintain this suitas a judgment-creditor. The judgment of the 29th September 1882 is still inforce, because of the attachment order in 1886. Therefore, limitation would runfrom 1886, not from 1882. This case is governed, not by Section 230 of theCivil Procedure Code or Article 179 of Schedule II to the Limitation Act, butby Article 180; because, when a decree has been transferred to the High Court,it is to he treated in every sense, and for all the purposes of execution, as adecree of the High Court. Besides, under Article 147, a mortgagee has sixtyyears within which to foreclose or sell; and to enforce that right he mustbring a suit under Sections 67 and 99 of the Transfer of Property Act---ChundraNath Dey v. Burroda Shoondury Ghose I.L.R. 22 Cal. 813 [LQ/CalHC/1895/56] .

33. This is not a "suit upon a judgment"; thatbeing a term well understood of which a suit upon a foreign judgment is anillustration. A suit by a judgment-creditor for administration and for the enforcementof a collateral security has never been considered, and cannot properly hecalled a suit upon a judgment. All the cases decided upon the article limitingsuits upon judgments show that the meaning of the term is the one I haveindicated. The cases of Chowdhry Paroosh Ram Das v. Kali Puddo Banerjee I.L.R.17 Cal. 53 and Futteh Narain Chowdhry v. Chundrabati Chowdhrain I.L.R. 20 Cal.551 were also cited and relied on.

34. Mr. Dunne for the respondent.---Whether this suit isbrought on the debt or on the judgment, it is barred by limitation. Theplaintiff asks for administration; but that is not a cause of action, it ismerely a form of the relief she prays for.

35. Again, the properties, the subject-matter of the suit,are wholly outside the jurisdiction of this Court. The properties in Calcuttaallotted to the defendant in Calcutta cannot be treated as security for themortgage debt; because the most that the plaintiff could claim on his mortgagewould be the share of the zemindary properties allotted to the mortgagor; andthose are all outside the jurisdiction.

36. The appellants decree was a mere money decree. It wasnot a decree directing any sale; it was certainly not a mortgage decree underthe Transfer of Property Act. It cannot be treated as such now; and she has notattempted to treat it as one, because she applied to the Hooghly Court forexecution of the decree. If it was a mortgage decree, there was nothing toprevent her from having the undivided share of the mortgagor in the zemindariessold; she only applied for attachment of the property. There is no applicationpending for execution; and this distinguishes the case from the case ofChowdhry Paroosh Ram Das v. Kali Puddo Banerjee I.L.R. 17 Cal. 53.

37. The argument cannot prevail that Section 230 of theCivil Procedure Code does not apply, because this is in effect a decree of theHigh Court in its original jurisdiction, within the meaning of Article 180 ofthe Limitation Act. The decision in Tincowrie Dawn v. Debendra Nath MookerjeeI.L.R. 17 Cal. 491 is an answer to that contention. The former Code wasentirely different from the present one on this subject. The old Code refers tothe effect of a decree for the purpose of execution; the present one dealsmerely with the machinery by which the decree is to be executed, and does notmake the decree of the lower Court a decree of the High Court.

38. If the right to execution is barred, no suit can in anyevent be brought on the judgment. Fakirapa v. Pandurannapa I.L.R. 6 Bom. 7 Butwhether the suit is barred by limitation or not, no such suit as this will lieat all. Mahomed Aga Ali v. Widow of Balmakund I. L. R. 3 I. A. 241 KisanNandram v. Anandram Bachaji 10 Bom. H. C. 433 Ranganasary v. Shappani Asary 5Mad. H. C. 375, Nasrudin v. Venkatesh Prabhu I.L.R. 5 Bom. 382.

39. Finally, the mortgage lien cannot be subsisting. If theplaintiff has a mortgage decree, the lien is merged; if not, she is in a worseposition than if she had. In the former case, the suit is barred under Section13 of the Civil Procedure Code; in the latter, by Section 43.

Mr. Pugh in reply.

C. A. V.

40. The following judgments were delivered:

Francis Maclean, C.J.

41. In this case the appellant, who is the plaintiff in thesuit as the legal personal representative of her late husband RadhajeebunMustafi, brings a suit against Thackomoni Dassi, as the heiress andrepresentative of her deceased husband Brojo Nauth Dey, and the object of thesuit is to have an account taken of what is due to her under a certain mortgageand decree, to have the estate of Brojo Nauth Dey administered by the Court,for the appointment of a Receiver, and for consequential relief. The factsbriefly are as follows:

42. On the 6th April 1880 Brojo Nauth Dey mortgaged hisshares in three properties, all outside the jurisdiction of this Court, andwhich I briefly refer to as (1) lot Bankra, (2) lot Sheakhala, (3) lotBegumpore, to the plaintiffs late husband to secure Rs. 10,000 and interest.

43. On the 22nd April 1882 Mustafi, the mortgagee,instituted a suit in the Court of the Subordinate Judge of Hooghly for therecovery of the debt, and on the 29th September 1882 (the defendant Brojo NauthDey having died in the meantime and the present defendants being entered asdefendants), the decree set forth in paragraph 4 of the plaint was pronounced,I must refer to this decree. It is at page 15 of the paper book. [After readingthe decree his Lordship continued]: In my opinion this was a mortgage decree,though not in the form prescribed by the Transfer of Property Act, which cameinto force on the 1st July 1882, but in the form in which, as I understand,such decrees had been for many years, and were drawn up in the Mofussil Courts.The decree provides for the payment of the mortgage debt, for the realizationof the mortgaged property and payment thereout of the mortgage debt. The claim,in this suit, it may be observed, asks that the claim, i.e., the money claim,should be realized out of the mortgaged property, and failing that from anyother property of the defendant. I think the decree of 1882 was a mortgagedecree, i.e., a decree made in a suit to enforce the mortgage in which themortgagee asked, not merely for a personal judgment against his debtor, but forthe realization of the mortgaged property to satisfy his claim.

44. On the 12th July 1883 the mortgagee applied to theMofussil Court for execution of the decree, and on the 27th July 1883 thatCourt ordered that the decree should be transferred to the High Court forexecution. On the 18th January 1887 an order for attachment was made by Mr.Justice Trevelyan and the plaintiff alleges that that order is still in force.From the date of the order in January 1887 the plaintiff did nothing whateveruntil 29th August 1894, nearly 8 years after, when she took out a summons inher suit for a sale of the mortgaged property under Section 89 of the Transferof Property Act, and on the 5th January 1895 that application was dismissedwith costs. On the 19th March 1895 she instituted this suit. In the meantimeproceedings had been taken in this Court for the partition of the entirety ofthe property, the shares in which of the original defendant Brojo Nauth Dey hadbeen mortgaged by the deed of the 6th April 1880. The facts as to these proceedingsmay be referred to very briefly. The suit was instituted on the 18th February1880, and a decree made on the 2nd April 1881, which directed the partition ofthe estate with a declaration as to what Brojo Nauth Deys share in the estatewas.

45. On the 20th May 1891 a Receiver was appointed in thelast-mentioned suit.

46. On the 30th June 1885 a decree was pronounced, theeffect of which is stated in paragraph 18 of the plaint.

47. In pursuance of that decree the Commissioners madevarious returns which were duly confirmed by the Court, and by a return, datedthe 22nd June 1894, lot Bankra, valued at Rs. 38,393, and other property valuedat 10,167, was allotted to the defendant, while lot Sheakhala and lot mouzahBegumpore were allotted to the other members of the family. The only other factto which I need refer is that by a decree of this Court, dated the 23rd July1883 in a mortgage suit by one Lal Behary Butt against the present defendant,the decree mentioned in paragraph 30 of the plaint was made.

48. This decree shows that if the proper steps were taken bya mortgagee of Brojo Nauth Dey, the Receiver in the partition suit would beordered to pay the mortgage debt, assuming, of course, he had the fundsproperly so applicable, and that directions would be given for the realizationof the mortgaged property to meet that debt. The only other order to which Ineed refer is that of the 6th December 1894 set out in paragraph 33 of theplaint. These are, shortly, the facts of the case; and upon them the plaintiffasks for the order I have mentioned. The question is whether she is entitled toit or to any other order. The defence is the Statute of Limitation, and thelearned Judge in the Court below upheld that defence. Section 4 of theLimitation Act is as follows:

Subject to the provisions contained in Sections 5 to 25(inclusive), every suit instituted, appeal presented, and application made,after the period of limitation prescribed therefore by the second schedulehereto annexed, shall be dismissed, although limitation has not been set up asa defence.

49. The cause of action arose originally when the mortgagedebt was created 16 years ago in 1880. If the plaintiff be suing on that debt,her remedy prima facie is clearly barred.

50. In 1882, under the decree in that year, the originaldebt became a judgment debt, and if the plaintiff be suing on that, her remedyis equally barred. The plaintiff cannot obtain a decree for administration,unless she can show she is a creditor in respect of a debt, the remedy for therecovery of which is not barred by the Statute. It the debtor had been living,could the plaintiff have sued him for the debt and its realization out of themortgage estate I do not think she could successfully have maintained such anaction; the Statute of Limitation would have been a bar, and not improbably theplea of res judicata under Section 13 of the Code. But it was not seriouslycontended that she could have successfully brought such an action.

51. Mr. Pugh for the plaintiff relies upon the attachmentorder of 1886, and contends that that order kept alive the decree of 1882, andthat the period consequently runs from 1886 and not from 1882.

52. He relies, as I understood his argument, on Article 180of the second schedule of the Limitation Act. But that article does not apply.

53. This suit is not an application to enforce a judgment ordecree or order of any Court established by Royal Charter, i.e., one of theHigh Courts; it is not suggested that it is an application to enforce theattachment order of 1887, nor can it be regarded as an application for theexecution of a decree or order under Article 179.

54. As I do not think Article 180 applies, it becomesimmaterial to consider whether the attachment order of 1886 revived the decreeof 1882, or to consider the various authorities which have been cited upon thatpoint, or the dictum of Chief Justice Peacock, reported at page 971, Bengal LawReports, Full Bench Rulings.

55. The plaintiff appears to me to be upon the horns of thisdilemma. If she be suing as a creditor for administration on the original debt,she is, apart from the effect of the order of 1886, clearly barred by theStatute; and if she rely on the attachment order of 1886 as keeping theoriginal debt alive, she is at once confronted with Section 230 of the Code,which makes it obligatory upon her, if she desire to enforce her decree, toapply to the Court which made the decree, and, in face of that provision, sheis not entitled, in my opinion, to institute a separate suit.

56. Apart from this, I think all questions arising betweenthe parties to the original suit, ought, under Section 244 of the Code, to havebeen decided, and could have been decided, by the Court executing the decree. Aseparate suit ought not to be instituted unless all questions between theparties or their representatives cannot be decided in the original suit. Theplaintiffs right is, if she he now not too late, to enforce the decree of1882, and any questions arising as to that ought to be determined, and can onlybe determined, by the Court executing that decree. I am prepared, to hold that,quite apart from any question as to the Statute of Limitation, the plaintiff isnot entitled to maintain this suit, having regard to Sections 230 and 244 ofthe Code.

57. One other point remains. It is said that under Article147 of the schedule to the Act the mortgagee has sixty years within which toforeclose or sell, and that to enforce that claim she must, under the conjointoperation of Sections 99 and 67 of the Transfer of Property Act, institute asuit for sale under the latter Section. But these Sections cannot apply if themortgagee have already obtained a decree for sale, as in my opinion she has,viz., the decree of 1882.

58. But (sic) this as it may, the present suit is not suchas is contemplated by Sections 99 and 67 of the Transfer of Property Act, norwas it intended to be; and if it were, having regard to the locality of theproperty, and to Section 12 of the Letters Patent, this Court could notentertain it.

59. In this case the plaintiff has for many years slept uponher rights, and if she have lost her remedy against the defendant, it isentirely her own fault. Litigation in this matter has been going on since 1882,and for nearly 8 years the plaintiff did nothing, and has never taken any stepsto enforce her attachment order of 1886; and now, some 13 years after theinstitution of the original suit, she comes and asks that the whole matter maycommence de novo, and the flood gates of litigation be re-opened. I think itwould be lamentable if such a claim could succeed; if so, the chances offinality in litigation would be very small.

60. For the reasons I have given, I think the appeal hasfailed, and must he dismissed with costs.

Macpherson, J.

61. Whether this suit is to be regarded as based on theoriginal debt, the mortgage, or the judgment or decree of 1882, it is not, Ithink, maintainable. The debt has passed into a judgment debt; and underArticle 122

of the Limitation Act no suit could now be brought on thejudgment. It is said that this is not a suit on the judgment within the meaningof that article, as it is a suit for the administration of the estate, but ifno suit could be brought on the judgment, I do not see how the judgment can bemade a ground for relief in this case.

62. Then it is said that the mortgage lion still subsists,and that under Section 99 of the Transfer of Property Act the plaintiff couldstill bring a suit for the sale of the mortgaged property. Even if this can beregarded as a suit for that purpose, I agree with Mr. Justice Sale, for thereasons stated by him, that the Court had no jurisdiction to entertain it. Butit seems to me that the decree of 1882 is in substance a decree for the sale ofthe mortgaged properties. It sets out those properties, and directs that thesum decreed should be realized from them, which can only mean by the sale ofthem; and that was the relief asked for in the suit. Assuming that Sections 88and 89 of the Transfer of Property Act, which came into force while the suitwas pending, applied to the suit, the decree was not, it is true, made inconformity with them as, instead of making a decree nisi, followed by a decreeabsolute, the Court at once made a decree absolute. But the decree baa neverbeen questioned, and is now a final decree as between the parties. The case ofChundra Nath Dey v. Burroda Shoondury Ghose I.L.R. 22 Cal. 813 [LQ/CalHC/1895/56] isdistinguishable, as the Court there in effect held that there was no decree forsale. No second suit to enforce the lien would therefore lie.

63. Mr. Pugh further argued that the decree of 1882 beingstill alive and capable of being executed there is a debt, the remedy for therecovery of which is not barred, and that the plaintiff can on this groundmaintain the suit. The decree of 1882 is said to be still alive, because theapplication which was made in September 1886 for the execution of it is stillpending, and because the attachment which followed on that application is stillin force, and it would not therefore be necessary for the plaintiff to make anyfresh application for execution, to which the 12 years rule laid down inSection 230 of the Civil Procedure Code would apply. Whether there is a pondingproceeding, and whether the plaintiff can get anything out of it, are mattersto be determined by the Court in which the proceeding is said to be pending,viz., the Court executing the decree. Assuming for arguments sake that thereis a pending proceeding, it is only in that proceeding, and by reason of itsbeing a pending proceeding, that the plaintiff could get any relief in the wayof execution, as any fresh application for the execution of the decree would bebarred by Section 230 of the Code. This is not a suit in aid of execution; ithas nothing to do with the execution of the decree; and if there is anexecution proceeding pending in which, and in which alone, the plaintiff could,putting her case at the highest, get some relief, this does not, I conceive,help her in bringing this suit.

64. Lastly, it is argued that Article 180 of the LimitationAct, applies as the decree, when sent to this Court for execution, became ineffect a decree of this Court. I think it is sufficient to refer to the case ofTincowrie Dawn v. Debendra Nath Mookerjee I.L.R. 17 Cal. 491 and to the reasonsthere given for holding that this contention cannot prevail.

65. In my opinion the appeal fails, and must be dismissedwith costs.

Trevelyan, J.

66. In my opinion the appeal and the suit both fail.

67. It is, I think, perfectly clear that the plaintiff hasnot a better right of suit against Brojo Nauth Deys representative than shewould have had against Brojo Nauth Dey himself, if he had been alive. His deathcannot, have altered her right of suit, although it may have changed thecharacter of the relief.

68. It is equally clear to my mind that a suit similar tothe present suit could not have succeeded against Brojo Nauth Dey, if he hadbeen alive. His based partly upon the mortgage and partly upon the decree. Sofar as it is based upon the mortgage, the right was merged in the decree of the29th of September 1882, which was a mortgage decree drawn in the form prevalentin Mofussil Courts before the passing of the Transfer of Property Act, anddirected the realization of the amount of the debt from the property mortgagedand other properties of the defendant. There could be no further rights on themortgage, the right of the creditor having become that of a judgment-creditor.This suit, as based on the judgment debt, is barred by Article 122 of theLimitation Act; but, even apart from that provision, a suit would not lie toenforce a judgment debt, the execution of which is barred by the law oflimitation.

69. It may be that the proceedings which have been commencedunder Section 272 of the Civil procedure Code are capable of being carried onto some conclusion, but the mere fact that those proceedings are not extinctwould not keep alive the decree so as to render it capable of executionotherwise than by way of continuation of the proceeding so commenced. The termsof Section 230 of the Civil Procedure Code would expressly prevent anotherapplication for the execution of this decree.

70. Article 179 of the second schedule of the Limitation Actis also, in my opinion, applicable; more than three years have elapsed sincethere has been any step in aid of execution, and therefore an application wouldnow be barred. It has been contended that Article 180 applies. In my opinionthe law of limitation is not altered by the transfer of the proceedings inexecution. The decree does not become a decree of the High Court, although itmay have to be enforced in the same manner as decrees of the High Court.

71. The argument is based upon an obiter dictum of Sir BarnesPeacock with reference to the meaning of another Act. The dictum was notapproved of by the other four Judges who sat with the Chief Justice. The dictumis not now in point, as we have now to deal with Acts containing a differentphraseology. I think it would be impossible to apply that dictum to the presentcase, The words of Article 180 of the Limitation Act are, to my mind, too plainto be capable of the interpretation which Mr. Pugh seeks to put upon them, andthere is nothing in the Civil Procedure Code to limit those terms.

72. Section 227 of the Civil Procedure Code directs thisCourt to execute the decree sent to it, in the same manner as if it had beenmade by this Court in the exercise of its Ordinary Original Civil jurisdiction.The "manner" of execution refers to the procedure under which theexecution is to be had, and has no reference to the limitation. It simplyapplies the High Court machinery to the execution of the decree.

73. In my opinion the execution of the decree is, exceptperhaps in continuation of the proceedings already taken (a matter which wehave not to deal with here), barred by limitation. That being so, the title ofthe plaintiff to bring this suit must fail. Moreover, I am inclined to thinkthat the terms of Section 244 (c) of the Civil Procedure [Code] would haveprevented this suit being brought against the judgment-debtor, and thereforewould bar the present suit; although having regard to the view. I entertain asto the suit being barred by limitation, it is not actually necessary to decidethis point. The only questions which are raised in this suit are"questions arising between the parties to the suit in which the decree waspassed or their representatives," and they relate to the execution of thedecree. The object of this suit is apparently to obtain execution of the decreeagainst some property other than that which was actually mortgaged. I cannotsee why this question cannot, as between the parties, be determined by theCourt executing the decree, and in the execution proceeding. The case ofProsunno Coomar Sanyal v. Kali Das Sanyal I.L.R. 19 Cal. 683: I. L. R. 19 I. A.166 shows that a narrow construction ought not to be placed upon Section 244,but that all questions which can possibly be determined in the executionproceedings should be so determined.

74. I would dismiss this appeal with costs.

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Jogomaya Dassi vs.Thackomoni Dassi (10.12.1896 - CALHC)