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Hari Janardhan Limaye And Others v. Krishnaji Balkrishna Bhate And Others
Structured Summary of the Opinion (Patkar, J.; Baker, J. concurring)
Factual and Procedural Background
This appeal arises from a mortgage-debt enforcement context. A compromise decree for Rs. 2,400 was passed on 23 August 1910, requiring payment by instalments and charging the whole sum on the mortgaged property. In April 1912 a fire partly destroyed the mortgaged building; subsequently part of the property was acquired by the Municipality. The decree-holder made a previous darkhast (an application) for execution of the 1910 decree (filed in or around 1913), which was dismissed because the decree did not give any personal relief against the mortgagors and therefore could not be executed personally. The decree-holder did not, at that earlier stage, apply for a supplemental personal decree under Order 34, Rule 6 (O.34, R.6) of the Code of Civil Procedure (CPC).
The present application under O.34, R.6 was filed on 10 February 1920. The two principal questions expressly posed by the Court were: (1) whether the application was maintainable under O.34, R.6 of the CPC, and (2) whether the application was within time (i.e., whether it was barred by limitation under Article 181 of the Limitation Act).
Procedurally, the District Court and an Appellate Judge (Shah, J.) accepted the decree-holder's contention that the prior darkhast supported execution, but the Letters Patent appeal (reported as Janardan v. Krishnaji) negatived that view and held the prior darkhast could not be executed personally. In the present appeal the High Court (Patkar, J., with Baker, J. concurring) ultimately reversed the decrees of the lower courts and dismissed the application as barred by limitation.
Legal Issues Presented
- Whether the present application is maintainable under Order 34, Rule 6 of the Code of Civil Procedure (i.e., whether a personal decree under O.34, R.6 could properly be granted in the circumstances).
- Whether the present application, filed on 10 February 1920, was made within the period of limitation under Article 181 of the Limitation Act (including whether any period occupied by a previous darkhast could be excluded under section 14 of the Limitation Act).
Arguments of the Parties
Appellants' Arguments
- It was urged that the cause of action for an application under O.34, R.6 arose not on the date of the fire (April 1912) but on 12 December 1915, when the plaintiff actually received compensation of Rs. 1,504 — on that day it was, according to appellants, ascertained that the proceeds of the remaining property were insufficient to liquidate the mortgage debt. If the cause of action arose on 12 December 1915, the appellants argued, the application might be within limitation; if it arose on the date of the fire (April 1912), the application was clearly time-barred under Article 181.
- The appellants also contended that a condition precedent to maintainability under O.34, R.6 (as they read it) had not been fulfilled: namely, that "the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff." They relied on authorities (Badri Das v. Inayat Khan; Pirbhu Narain Singh v. Baldeo Misra; Kamta Prasad v. Saiyed Ahmad; Darbari Mai v. Mula Singh) to support a strict construction requiring an actual sale (or equivalent) under the prior rules of Order 34 before a personal decree could be decreed.
Plaintiff-Respondent's Arguments (as recorded)
- The plaintiff-respondent's position (described in the opinion) was that where the mortgaged property is wholly or partially destroyed or ceases to be available for realization through no fault or negligence of the mortgagee, the mortgagee should be entitled to make an application under O.34, R.6 for a personal decree. The Court records that there is "considerable force" in that contention in such circumstances.
- The respondent relied on authorities (notably Satish Ranjan Das v. Mercantile Bank of India and Chand Mall Bahu v. Ban Behari Bose) holding that the remedy of the mortgagee is primarily against the mortgaged property but that if the property (or part of it) is no longer available for sale through no fault of the mortgagee, an O.34, R.6 application may be permissible.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Pell v. Gregory | Support for the proposition that applications under transferred provisions (section 90 Transfer of Property Act → O.34, R.6 CPC) are governed by Article 181 of the Limitation Act. | Used to justify that the present application is under the Code of Civil Procedure and therefore Article 181 applies to limitation. |
| Biswambhar Shaha v. Ram Sundar Kaibarta | An earlier decision overruled by Pell v. Gregory (as recorded). | Mentioned as an earlier authority overruled; not relied upon for present decision. |
| Muhammad Illifat Husain v. Alim-un-nissa Bibi | An earlier decision overruled by Pell v. Gregory (as recorded). | Mentioned as an earlier authority overruled; not followed. |
| Janardan v. Krishnaji | Held that the previous darkhast could not be executed personally because the decree had not given any personal relief; remedy was to obtain a personal decree under O.34, R.6. | Relied upon to conclude the previous darkhast was dismissed on merits (decree not executable personally) and thus section 14 Limitation Act could not be invoked to exclude the time occupied by that darkhast. |
| Commercial Bank of India v. Allavoodeen Saheb | Held that section 14 Lim. Act does not apply where a previous suit was dismissed on the merits (no cause of action) rather than for defect of jurisdiction. | Applied to support the proposition that an abortive or misconceived suit dismissed on merits does not qualify for exclusion under section 14. |
| Murugesa Mudaliar v. Jattaram Davy | Held that a previous suit dismissed because it was misconceived does not fall within S.14's exclusion (not dismissed for defect of jurisdiction). | Followed as authority that dismissal for being misconceived does not permit deduction under S.14. |
| Tukaram Apaji v. Naro Vithal Ghate | Similar rule: prior suit dismissed as misconceived does not attract S.14 exclusion. | Cited in support of the above principle. |
| Ganpatrao v. Anandrao | Concerned a case where the previous Court had no jurisdiction because the matter ought to have been entertained by the court executing the decree under section 47 CPC. | Distinguished: the present previous darkhast was dismissed on construction of the decree, not for want of jurisdiction as in Ganpatrao. |
| Jeuna Bahu v. Parmeshwar Narayan Mahtha | Held that the opening words of O.34, R.6 do not establish as an inflexible condition precedent that the mortgaged property must first be sold and found insufficient before a personal decree can be granted. | Used to reject a strict and technical construction of R.6 and to support the view that "any such sale" could include sales under rules other than only a decree absolute under R.5. |
| Satish Ranjan Das v. Mercantile Bank of India | Held the mortgagee's remedy is in the first instance against the mortgaged property, but if property ceases to be available through no fault of the mortgagee (e.g., sold in execution of prior decree), an application under O.34, R.6 may lie. | Followed and relied on to support the proposition that where part or all of the mortgaged property is no longer available through no fault of the mortgagee, O.34, R.6 may be available to the mortgagee. |
| Chand Mall Bahu v. Ban Behari Bose | Followed Satish Ranjan Das; held the mortgagee's remedy is primarily against the property but this does not bar O.34, R.6 where property ceased to be available through no fault of the mortgagee. | Followed to the same effect as Satish Ranjan Das in supporting maintainability in appropriate circumstances. |
| Badri Das v. Inayat Khan | One of the authorities cited by appellants supporting a stricter construction of O.34, R.6 (condition precedent of sale/proceeds). | Not followed; distinguished on facts (cases relied on involved default or negligence by mortgagee in realizing property). |
| Pirbhu Narain Singh v. Baldeo Misra | Another authority cited for strict construction requiring sale/proceeds. | Distinguished for factual differences (involving mortgagee default or negligence) and therefore not controlling here. |
| Kamta Prasad v. Saiyed Ahmad | Authority relied on for strict requirement as to sale before personal decree. | Distinguished on facts; the Court declined to adopt a strictly technical construction in the present circumstances. |
| Darbari Mai v. Mula Singh | Authority cited by appellants for strict reading of O.34, R.6. | Distinguished; Court noted the Privy Council and Calcutta High Court have not accepted a strict construction in similar circumstances. |
| Ram Sewak Rai v. Sheo Naik Rai | Held that where mortgaged property was destroyed by diluvion, the mortgagee (under a compromise decree) could sue personally under section 68 Transfer of Property Act. | Noted by the Court but observed that the decision does not bear on the construction of O.34, R.6; cited for the proposition that the mortgagee may have a personal remedy under the Transfer of Property Act in certain circumstances. |
Court's Reasoning and Analysis
The opinion proceeds in a series of legal steps, applying statute and precedent strictly as recorded in the text.
- Characterisation and limitation: The Court first assumed for argument that the application was maintainable under O.34, R.6. It held that because Section 90 of the Transfer of Property Act had been transferred to the Code as O.34, R.6, the application is an application under the Code and is therefore governed by Article 181 of the Limitation Act (three years from accrual of the right to apply) — a position supported by Pell v. Gregory.
- Effect of earlier darkhast on limitation (section 14 Lim. Act): The District Court and an appellate judge had held that limitation began to run from April 1912 (date of the fire) but that the present application was within time because the period occupied by the previous darkhast (from 1913 to 1920) could be excluded under section 14 of the Limitation Act. The High Court analysed whether exclusion under section 14 was permissible. Section 14, cl. (2), allows exclusion of the time during which a previous action was pending if it was prosecuted with due diligence and in good faith in a Court which, from defect of jurisdiction or a similar cause, was unable to entertain it.
- Why section 14 did not apply: The Court found the previous darkhast was not entertained because it was misconceived — it sought execution of the 1910 decree as though that decree gave personal relief against the mortgagors, whereas in law the decree had not granted personal relief and therefore could not be executed personally. The High Court relied on the decision in Janardan v. Krishnaji to show the previous darkhast was dismissed on the construction of the decree (on the merits), not for want of jurisdiction or a like cause. The Court distinguished cases where dismissal was for lack of jurisdiction (e.g., Ganpatrao v. Anandrao) and relied on authorities (Commercial Bank of India v. Allavoodeen Saheb; Murugesa Mudaliar v. Jattaram Davy; Tukaram Apaji v. Naro Vithal Ghate) to show that dismissal for being misconceived does not attract section 14 exclusion.
- Alternative argument as to accrual date: The appellants' contention that the cause of action arose on 12 December 1915 (when compensation of Rs. 1,504 was received and thus insufficiency of proceeds could be said to be ascertained) was considered. The Court observed that if the cause of action were said to have arisen on that date, then the previous darkhast filed in 1913 would not be based on the same cause of action and therefore section 14 would still not apply. In either line of analysis, the Court concluded the present application was beyond the three-year period of Article 181.
- Maintainability under O.34, R.6 (condition precedent issue): The Court separately examined whether O.34, R.6 requires, as an inflexible condition precedent, an actual sale under the prior parts of O.34 (strictly a sale under R.5) and that the net proceeds of such a sale be found insufficient. It reviewed authorities: Jeuna Bahu v. Parmeshwar Narayan Mahtha (rejecting a strict technical construction), Satish Ranjan Das v. Mercantile Bank of India and Chand Mall Bahu v. Ban Behari Bose (permitting O.34, R.6 where property was no longer available through no fault of mortgagee). The Court found that in many authorities cited by the appellants the mortgagee had been negligent or defaulting; by contrast, where the mortgaged property is destroyed or ceases to be available through no fault of the mortgagee, an O.34, R.6 application may be maintainable.
- Application to present facts on maintainability: The present decree was a compromise decree (not a decree under O.34, R.5) with special provisions charging the whole decretal amount on the property. Given the partial destruction by fire and acquisition by Municipality (through no fault of the mortgagee), the Court (Patkar, J.) was "inclined to hold" that an application under O.34, R.6 would be maintainable on the facts.
- Limitation conclusion governs outcome: Despite concluding that O.34, R.6 might be maintainable on the facts, the Court halted further inquiry into recoverability because it determined that the application was barred by limitation. It observed that under Section 68 (Transfer of Property Act) the mortgagee would in principle be entitled to sue personally, but that question need not be decided because the application failed on limitation grounds.
- Concluding judicial disposition: Both judges agreed (Patkar, J., with Baker, J. concurring) that the present application, filed 10 February 1920, was time-barred because limitation began to run from the date of the fire (April 1912) and the time spent on the prior darkhast could not be excluded under section 14 Limitation Act. Accordingly, the decrees of both lower courts were reversed and the application dismissed with costs.
Holding and Implications
Core Holding: The application under Order 34, Rule 6 filed on 10 February 1920 is barred by limitation and is dismissed; the decrees of the lower courts are reversed.
Immediate consequences for the parties:
- The plaintiff-respondent's application under O.34, R.6 is dismissed with costs throughout.
- The decrees of the lower courts (which had allowed or otherwise not dismissed the application) are reversed by the High Court.
Broader implications as discussed in the opinion:
- The Court indicated that O.34, R.6 can be construed so as not to require an inflexible technical pre-condition of an actual sale under R.5 in every circumstance; where mortgaged property is destroyed or ceases to be available through no fault of the mortgagee, an application under O.34, R.6 may be maintainable. The Court relied on and followed authorities to that effect (e.g., Satish Ranjan Das; Chand Mall Bahu; Jeuna Bahu).
- However, because the Court decided the appeal on limitation grounds, it did not finally adjudicate the entire scope of remedies available under O.34, R.6 and Section 68; the judgment dismisses the present application without deciding any broader unresolved question beyond the reasoning recorded.
Note: The Court explicitly refrained from further discussion of the legal recoverability under Section 68 or detailed consequences beyond the limitation ruling because the application was found to be time-barred.
Judgment authored by Patkar, J.; Baker, J. concurred. Decree reversed; application dismissed (costs awarded to the plaintiff-respondent 1).
Patkar, J.:— (After stating the facts as given above, the judgment proceeded.) The questions arising in this appeal are: firstly, whether the present application is maintainable under O. 34, R. 6 of the CPC and, secondly, whether the application is within time.
2. Assuming that the application is maintainable, the present application, filed on 10th February, 1920, would be governed by Article 181 of the Lim. Act, which provides the period of limitation of three years from the time when the right to apply accrues. Section 90 of the Transfer of Property Act has been transferred to the Code of Civil Procedure as O. 34, R. 6. Therefore, the application under that rule would be an application under the Code of Civil Procedure, and Article 181 would apply: see Pell v. Gregory(1), overruling Biswambhar Shaha v. Ram Sundar Kaibarta(2), and Muhammad Illifat Husain v. Alim-un-nissa Bibi(3). Both the lower Courts held that limitation began to run from April 1912 when the fire occurred, and that the present application was within time on account of the exclusion of the period from 1913 to 1920 occupied by the previous darkhast in computing limitation under section 14 of the lim. act.
3. Under S. 14, Cl. (2), the time during which the previous darkhast was pending could be excluded if it was prosecuted with due diligence and in good faith in a Court which from defect of jurisdiction or other cause of a like nature was unable to entertain it. It is not suggested that there was any want of due diligence or good faith in the prosecution of the previous darkhast. The only question is whether the previous darkhast could not be entertained by the Court from defect of jurisdiction or other cause of a like nature. The previous darkhast was for execution of the decree passed on 23rd August, 1910, on the ground that it gave personal relief against the mortgagors, and though it was stated in the application that the fire took place in 1912 and therefore the property would be insufficient for the realization of the mortgage security, the previous darkhast was for execution of the decree in the original suit passed on 23rd August, 1910, and not to obtain a supplemental decree for a personal remedy under O. 34, R. 6. It was finally held by the High Court in Janardan v. Krishnaji(4) that the darkhast could not be executed personally against the mortgagors because the decree had not given any personal relief against the mortgagors judgment-debtors, but the remedy of the plaintiff was to obtain a personal decree against the mortgagors under O. 34, R. 6. It cannot, therefore, be said that the previous darkhast was not entertained for want of jurisdiction or other cause of a like nature. The decree-holder misconceived his remedy. Instead of applying for the sale of the remaining property and applying under O. 34, R. 6, in case the probable net proceeds of the sale were considered insufficient, the decree-holder chose to execute the previous decree of 1910 on the ground that the decree itself was executable personally against the mortgagors. The contention of the decree-holder was accepted by the District Court and by Shah, J. in appeal, but was negatived in the Letters Patent appeal. It is clear, therefore, that the previous darkhast was dismissed, because the decree sought to be executed was not executable personally against the mortgagors, and that the decree-holder had misconceived his remedy in executing the decree and not applying for a supplemental decree under O. 34, R. 6.
4. In Commercial Bank of India v. Allavoodeen Saheb(5), it was held that S. 14 did not apply because the previous suit was dismissed not on a technical ground of misjoinder of parties or causes of action but on the ground that having regard to the frame of the suit, no cause of action had been established against any of the defendants, and that it could not be said that an abortive suit was one which the Court, from defect of jurisdiction or other cause of a like nature, was unable to entertain. In Murugesa Mudaliar v. Jattaram Davy(6), it was held that the previous suit was dismissed not because the Court, through defect of jurisdiction or other cause of a like nature, was unable to entertain it, but because it was misconceived. To the same effect is the decision in Tukaram Apaji v. Naro Vithal Ghate(7). The case of Ganpatrao v. Anandrao(8), relied on behalf of the respondent, does not apply to the facts of the present case, for in the previous suit the Court had no jurisdiction as the question was one which ought to have been entertained by the to art executing the decree under section 47 of the cpc. The previous darkhast in this case was decided on the construction of the decree and not on the ground of want of jurisdiction or other cause of a like nature. The decree-holder's proper remedy, if any, was to apply under O. 34 R. 6, for a supplemental decree and not to execute the previous decree which had not given any personal relief. I think, therefore, that the time occupied by the prosecution of the previous darkhast cannot be deducted in computing the period of limitation under section 14 of the lim. act.
5. It is urged on behalf of the appellants that as a matter of fact, the plaintiff received compensation of Rs. 1,504 on 12th December, 1915, and though the amount was not received in execution of the sale as required by O. 34, R. 6, still it was ascertained on 12th December, 1915, that the proceeds of the remaining property were found insufficient for the liquidation of the mortgage debt, and the cause of action to apply for a supplemental decree arose on that day. If the cause of action for an application under O. 34, R. 6, arose on the day when the fire occurred, i.e, April 1912, the present application is beyond time under Article 181 as stated above. If, on the other hand, the cause of action be said to have arisen on 12th December, 1915, when the proceeds of the mortgaged property were proved to be insufficient, the previous darkhast filed in 1913 cannot be said to be based on the same cause of action as the present application, and section 14 of the lim act, would not apply. The present application under O. 34, R. 6, is, therefore, beyond time.
6. It is urged on behalf of the appellants that the application is not maintainable as the condition precedent to the maintainability of the application has not been fulfilled, namely, that the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff. It is urged that it is only when the net proceeds of any sale which has been ordered under the previous rules of O. 34, are found to be insufficient to pay the amount due to the plaintiff, that an application under O. 34, R. 6, would lie, and reliance is placed on Badri Das v. Inayat Khan(9), Pirbhu Narain Singh v. Baldeo Misra(10), Kamta Prasad v. Saiyed Ahmad(11), and Darbari Mai v. Mula Singh(12).
7. If the words of the rule are strictly construed, it would follow that any such sale under R. 6 would refer to a sale under a decree absolute passed under R. 5, O. 34. But under O. 34, R. 8, a sale can be ordered and it cannot be said that any such sale in R. 6 could not refer to a sale under O. 34, R. 8. In Jeuna Bahu v. Parmeshwar Narayan Mahtha(13), it was held that the opening words of O. 34, R. 6, did not establish as a condition precedent to the power of decreeing payment of the balance, that the mortgaged property must first be sold and found insufficient to satisfy the debt. The question in that case was merely whether the Court at the time of passing a decree on a mortgage could not also pass a decree that on the happening of the event when the net proceeds of the sale were found to be insufficient, the balance should be paid. The present point under consideration did not arise in that case, but it was held that the construction suggested on behalf of the appellant was a strict and technical construction and was not acceptable.
8. In Satish Ranjan Das v. Mercantile Bank of India, Ld.(14), it was held that the object of the rule obviously was that the remedy of the mortgagee should, in the first instance, be against the property mortgaged, and that such property should be exhausted before a personal liability is imposed upon the mortgagor, but the rule could not mean that if a portion of the property, however small, which was included in the mortgage and therefore included in the mortgage decree as a portion of that which was to be sold, is destroyed or has ceased to be available for sale after the date of the decree and through no fault of the mortgagee, then there can be no decree for personal liability against the mortgagor. In that case, the decretal amount in favour of the Mercantile Bank amounted to about Rs. 2,55,000 and most of the available property belonging to the judgment-debtors had been sold in execution of a decree in favour of the Allahabad Bank. There was a sale held in execution of the decree in favour of the Mercantile Bank in respect of three properties which fetched in all Rs. 20. The available property of the mortgagors could not be sold in execution of the decree of the Mercantile Bank, because it had already been sold in execution of the decree in favour of the prior mortgagee, the Allahabad Bank. Therefore, in that case, though there was a sale in form, it cannot be said that there was in substance a real sale in execution of the mortgage decree sought to be executed. Though the bulk of the property was sold in execution of the prior decree, the puisne mortgagee was held entitled to make an application under O. 34, R. 6.
9. The decision in the case of Satish Ranjan Das v. Mercantile Bank of India Ld. was followed in Chand Mall Bahu v. Ban Behari Bose(15), where certain properties were sold under Reg. 8, 1819 otherwise than in execution of the mortgage decree and in execution of a decree on an earlier mortgage, and the mortgagee under the later mortgage made an application under O. 34, R. 6, for a personal decree against the mortgagor. It was held that the remedy of the mortgagee in the first instance was against the property mortgaged, and such property should, in the first instance, be exhausted before a personal liability could be imposed upon a mortgagor, but this did not mean that if a portion of the property, however small, which was included in the mortgage and therefore included in the mortgage-decree, was destroyed or ceased to be available for sale through no fault of the mortgagee, there could be no decree for personal liability against the mortgagor.
10. In the cases relied on behalf of the appellants it appears that there was either default on the part of the mortgagee in not bringing the property to sale in execution of his mortgage decree, or negligence in accepting as security properties which were non-existent. Where however, an unencumbered property is given as security for the mortgage debt and a decree is passed against the mortgaged property, and subsequently it is wholly or partially destroyed or ceased to be available for realization of the mortgage amount through no fault or negligence of the mortgagee decree-holder, I think that there is considerable force in the contention on behalf of the plaintiff-respondent that it would be open to the mortgagee to make an application under O. 84, R. 6, unless the words where the net proceeds of any such sale are found to be insufficient to pay the amount due to the plaintiff and the words otherwise than out of the property sold are strictly construed. Such a strict construction of this rule has not been accepted by the Privy Council and the Calcutta High Court.
11. In Ram Sewak Rai v. Sheo Naik Rai(16) the mortgaged property having been destroyed by diluvion, the mortgagee under a compromise decree was held entitled to bring a suit under Section 68 of the Transfer of Property Act, to recover the mortgage money personally from the mortgagor. The decision does not bear on the question of the construction of O. 34, R. 6.
12. In the present case, the decree passed was a compromise decree and not a decree passed under O. 34, R. 5. The decree ordered the amount of Rs. 2,400 to be paid by instalments, and the compromise decree further provided that until payment of the whole mortgage amount, the whole of the sum should be a charge on the mortgaged property. The decree is of an unusual character and imposed a charge on the mortgaged property for the whole decretal amount. Some portion of the building was destroyed by fire and the open site and rest of the building was acquired by the Municipality after the mortgagee decree-holder applied for sale of the mortgaged property. In this case the property was partly destroyed by fire and partly ceased to be available for sale through no fault or negligence of the mortgagee decree-holder. I am inclined to hold that under the circumstances of this case an application under O. 34, R. 6 would be maintainable.
13. The next question would be whether the balance would be legally recoverable from the defendants under O. 34, R. 6. Under S. 68, last clause, of the Transfer of Property Act, the mortgagee is entitled to sue the mortgagor for the mortgage money and the balance would be legally recoverable from the defendants unless the remedy of the mortgagee decree-holder is barred by limitation. It is not, however, necessary to discuss the question further, as I have already held that the present application, even if maintainable, is beyond time. I would, therefore, reverse the decrees of both the lower Courts, and dismiss the application with costs throughout on the plaintiff-respondent 1.
14. Baker, J.:— I agree. This case raises rather a difficult point as the fire by which the mortgaged property was partly destroyed and its value substantially decreased occurred after the decree in the mortgage suit, and before any sale had taken place under the decree, thus giving rise to the contention that neither O. 34, R. 6 of the CPC, nor Section 68 of the Transfer of Property Act, apply to the facts of the present case. It is, however, not necessary to go into the point, as the appeal must be decided on the point of limitation.
15. There can be no doubt that the present application is covered by Article 181 of the Lim. Act, and would be barred if limitation runs from the date of the fire, April 1912, unless the time occupied in the former application can be deducted under section 14 of the lim. act. That cannot be deducted unless the previous application is regarded as being dismissed because the Court had no jurisdiction. The reason for which that application was dismissed will be found set out in the report in Janardan v. Krishnaji, and it is clear that it was dismissed on the merits on the ground that there must be a decree personally made against the mortgagor before it can be executed against property other than the mortgaged property. Section 14 of the Lim. Act, would, therefore, have no application. The present application, made on 10th February, 1920, is, therefore, barred.
16. Decree reversed.
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