Authored By : Henry Thoby Princep, S.C. Ghose

Henry Thoby Princep and S.C. Ghose, JJ.

1. This is a matter relating to the execution of a decree ona mortgage passed under the Transfer of Property Act. It seems that anapplication for execution of that decree was made and abandoned, and againrenewed, without the plaintiff having obtained an order under Section 89 forthe sale of the mortgaged properties. On the second application to execute, themortgagor, judgment-debtor, objected that the decree could not be executedwithout such an order, and he succeeded in getting the application to executedismissed on this ground. On this, the mortgagee has applied to have his decreemade absolute by an order for sale of the mortgaged properties. The objectionwas renewed by the mortgagor on the ground that more than three years havepassed since the original decree, and that, therefore, the application now madewas barred by Article 178, Schedule II of the Limitation Act of 1877. Both theCourts have overruled this objection and have concurrently given the mortgageethe order that he desires. They have both proceeded on the judgment of theAllahabad High Court in the case of Ranbir Singh v. Drigpal I.L.R. All. 23,which followed the judgment of the Bombay High Court in the case of Baimanekbaiv. Manekji Kavasii I.L.R. 7 Bom. 213 [LQ/BomHC/1880/2] . In both these cases, the object ofArticle 178 was considered. In the Bombay case it was sought to apply Article178 to an application for probate or letters of administration, and it wasthere held that that article was limited to applications made under the Code ofCivil Procedure. The learned Chief Justice proceeds: "An examination ofall the other articles in the second schedule, relating to applications, thatis to say, of the third division of that schedule, shows that the applicationstherein contemplated are such as are made under the Civil Procedure Code.Hence, it is natural to conclude that the applications referred to in Article178 are applications ejusdem generis, i.e., applications under the Code ofCivil Procedure. The-preamble of the Act, moreover, purports to deal withcertain applications only and not with all applications." The judgment ofthe Allahabad High Court, to which reference has been made, is also to asimilar effect. In that case, as in this, the application related to an orderfor sale under a decree passed on mortgage. Mr. Justice Burkitt, afterfollowing the judgment of the Bombay Court, pointed out that the Limitation Actwas enacted some years before the passing of the Transfer of Property Act, andhe says: "I cannot find, nor has my attention been called to any rule oflimitation aliunde which could be applied to an application under Section 89 ofthe latter Act. I am accordingly obliged to hold that there is no limitationrule under which the application made by the appellant in March 1890 can beconsidered to fall." We approve of the view taken in both these judgmentsof Article 178, and agree that it should be limited to applications under theCode of Civil Procedure. The result, therefore, is that an application, such asthat now before us, is not, governed by any limitation. We do not, however,mean to say that, in dealing with such matters, the Court will not be guided byconsiderations as to whether any delay on the part of the mortgagee has notbeen unreasonable,, so as to bring it within the rules applied in such cases byCourts of Equity. We may further observe that no final order for sale havingbeen passed this suit may properly be regarded as being still pending. Theappeal is, therefore, dismissed with costs.

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Tiluck Singh vs.Parsotein Proshad (08.07.1895 - CALHC)