Authored By : Edward Maynerd Des Champs Chamier, Jwala Prasad

Edward Maynerd Des Champs Chamier, C.J.

1. This is an appeal against an order of the Subordinate Judge of Gaya, dismissing an application made by the appellant for execution of a decree. The facts are as follows:-

A decree nisi was passed for the sale of mortgaged property on August 11th, 1896, and was made absolute on February 6th, 1898. Various applications were made for execution of the decree with which we are not now concerned. The first application which it is necessary to notice was made on February 16th, 1904. It was dismissed by the Subordinate Judge on January 23rd, 1905, but was allowed by the High Court on appeal on June 28th, 1906. The next application was made on September 4th, 1907, and was also disallowed by the Subordinate Judge but was allowed by the High Court on appeal on Jane 29th, 1910. The next application was made on July 28th, 1911, and was struck off on June 29th, 1912, after the decree-holder had recovered a sum of about Rs. 67,000. The next application for execution was made on September 6th, 1912, and was dismissed for want of prosecution on December 5th, 1912. Finally the present application for execution was made on July 18th, 1913. The Subordinate Judge held that it must be dismissed under section 48 of the Code of Civil Procedure as it was made more than 12 years from the date of the decree sought to be executed.

2. The first question for decision in this appeal is whether section 48 of the Code of Civil Procedure applies to the application. The appellant relies upon section 6 of the General Clauses Act, 1897, which provides that the repeal of an enactment shall not affect any right acquired under the enactment repealed, or affect any legal proceeding or remedy in respect of any such right. He contends that if section 48 of the present Code of Civil Procedure is held to apply to the application for execution now in question, the result will be that the right which he had acquired under the Code of 1882 to execute his decree will be taken away. The point was considered in two cases by the Calcutta High Court and in one case by the Allahabad High Court. In both the Calcutta cases it was held that section 48 governed an application made after the passing of the Code of Civil Procedure, 1908, for execution of a decree for sale passed at a time when the Code of Civil Procedure, 1882, was in force. [See Bisseshur Sonamat v. Jasoda Lal Chowdhry 19 Ind. Cas. 391 : 40 C. 704 : 17 C.W.N. 622. and Jaimangalbati Misrain v. Badan Chand Das 19 Ind. Cas. 899 .] The view taken in these two cases is strongly supported by the judgments of Mookerji, Carnduff and N.R. Chatterjea, JJ., in the case of Manjuri Bibi v. Akkel Mahmud 19 Ind. Cas. 793 : 17 C.L.J. 316 : 17 C.W.N. 889. A contrary view was taken by Knox and Karamat Hussain, JJ., in Konsilla v. Ishri Singh 6 Ind. Cas. 188 : 32 A. 499 : 7 A.L.J. 420. Those learned Judges were of opinion that a right to enforce execution of such a decree was a substantive right acquired under the Code of 1882 and was not affected by the passing of the Code of 1908. The Calcutta High Court on the other hand held that in such a case it could not be said that the decree-holder had acquired a right under the Code of Civil Procedure, 1882, within the meaning of section 6 of the General Clauses Act, 1897. They held that the decree-holder was entitled to execute the decree in accordance with the provisions of the Code of 1882 as long as it was in force but had no vested right in the procedure prescribed by that Code, that the right enjoyed by the decree-holder had been created by the mortgage debt and had merged in the decree passed in the suit, and, therefore, could not be said to have been acquired under the Civil Procedure Code of 1882. The view taken by the Calcutta High Court is supported by a long string of English decisions some of which are referred to by Carnduff, J., in one of the cases cited above. In my opinion the application for execution now in question should prima facie be dismissed with reference to section 48 of the present Code of Civil Procedure. It is argued, however, that the decree-holder was within the meaning of sub-section 2 of that section, prevented by fraud or force on the part of the judgment-debtor from executing the decree. There appears to be no force whatever in this contention. The objections put forward against the applications for execution presented on February 16th, 1904, and September 4th, 1907, were allowed in the first instance by the Subordinate Judge and were disallowed by the High Court on appeal. But it is impossible to hold that the objections put forward on those occasions were fraudulent. They were, as already stated, accepted by the Subordinate Judge and they raised fair questions for decision. Next, it is contended that there was in March 1902 an acknowledgment of liability within the meaning of section 19 of the Limitation Act. I will assume, though it is by no means clear, that the petition relied upon did amount to an acknowledgment within the meaning of the Limitation Act. An acknowledgment made in March 1902 gave the decree-holder a fresh period of 3 years within which to apply for further execution of the decree. The contention advanced before us was that the acknowledgment gave the decree-holder a fresh period of 12 years, but this contention overlooks the fact that at the time when the so-called acknowledgment was made the Code of Civil Procedure, 1908, had not been passed and section 230 of the Code of 1882 did not, according to the decisions of the Calcutta High Court, apply at all to decrees for the sale of mortgaged property. There seems to be no ground whatever for the contention that the acknowledgment gave the decree-holder a further period of 12 years within which to apply for execution of his decree. Section 48 of the Code of Civil Procedure, 1908, applies to decrees for sale, but the passing of that Code cannot be held to give retrospective operation to the so-called acknowledgment of March 1902 in such a way as to give the decree-holder a fresh period of 12 years within which to apply for further execution. Nor in my opinion would any such acknowledgment, even if made after the passing of the Code of 1908, give a decree-holder a fresh period of 12 years. To construe section 19 in the way suggested by the learned Counsel for the decree-holder-appellant would render many of the provisions in the 3rd column of Article 182 of the First Schedule to the Limitation Act useless in any case in which acknowledgment of liability had been given. There can, I think, be no doubt that the words 'fresh period of limitation' in section 19 of the Limitation Act do not refer to the term of 12 years prescribed by section 48 of the Code of Civil Procedure. Lastly, it was contended that the present application for execution was one made in continuation of the application presented on July 28th, 1911. This contention also must be rejected. Upon the application of July 28th, 1911, a large amount of property was put up for sale. The present application for execution contains a prayer that it may be treated as being in continuation of the application of 1911, but it asks for relief altogether different from the relief claimed in 1911 and is directed against property which is not touched by the application of 1911. In my opinion the present application is not one in continuation of the application of 1911. The result is that, in my opinion, the Court below was right in holding that the present application for execution is barred by section 48 of the Code of Civil Procedure. I would dismiss this appeal with costs, and would assess the hearing fee at three gold mohurs.

Jwala Prasad, J.

3. This is an appeal in a proceeding for the execution of a decree. The question is whether the execution of the decree is barred by limitation. The decree for the sale of the mortgaged property was passed on August 11th, 1896, and was made absolute on February 6th, 1898. The present application for execution was made on July 18th, 1913. The Subordinate Judge dismissed the application holding that it was barred under section 48 of the Civil Procedure Code, Act V of 1908, inasmuch as it was made more than 12 years from the date of decree sought to be executed.

4. The Contention on behalf of the appellant is that section 48 of the present Code does not apply to the application for execution as the decree in question was passed when the old Act of 1882 was in force, section 230 of which did not apply to mortgage-decrees, and hence there was no limit of time for the execution of the decree. The contention is based on section 6 of the General Clauses Act, 1897, which provides that the repeal of an enactment shall not affect any right acquired under any enactment repealed.

5. The contention does not appear to be sound. The decree-holder acquired a right to sell the mortgaged property under the Transfer of Property Act and not under the Code of Civil Procedure, which prescribes rules of procedure for the enforcement of the decree through the aid of the Court. The rule that no order for the execution of a decree shall be made after 12 years from the date of the decree, is a rule of procedure and is a part of the Procedure Code. The decree-holder did not acquire any right under section 230 of the Act of 1882, and hence its repeal by the present. Code did not destroy any vested right in him.

6. The application for execution will, therefore be governed by section 48 of the Civil Procedure Code of 1908 that was in force at the time when the application for execution was made. This view is supported by a series of decisions of the Calcutta High Court and is based upon the principle that the law of limitation is a branch of adjective law and governs all proceedings to which it is applicable, from the date of its enactment.

7. It is further contended that the period occupied in the litigation on account of the objections put forward by the judgment-debtors against the applications for execution presented on 16th February 1904 and 4th September 1507 should be excluded. The objections were partly allowed by the 1st Court but were disallowed by the High Court on appeal. These objections certainly could not be said to be fraudulent within the meaning of section 48, Civil Procedure Code.

8. The third contention of the decree-holder is that the judgment-debtors acknowledged their liability in a petition dated 17th March 1902 presented in Court in Execution Case No. 54 of 1901, and hence the decree-holder is entitled to a fresh period of 12 years from the date of the said acknowledgment.

9. For the reasons given by the learned Chief Justice in his judgment I agree that the contention should be rejected.

10. The last contention of the decree-holder is that the present application is in continuation of the application made in 1901. It appears from the order dated 29th June 1912 that the execution case was dismissed on part satisfaction on the prayer of the decree-holder. It is impossible to treat the present application as a continuation of that dismissed application.

11. The result is that I agree with the learned Chief Justice in the order proposed by him and would dismiss the application with costs.

12. BY THE COURT-The order of the Court is that the appeal is dismissed. The hearing fee is assessed at three gold mohurs.