Rama Venkatasubba Iyer v. Shanmukam Pillai

JUDGMENT

1. We do not think the application to make a personal decree against the mortgagor was an application for the execution of a decree. We think this is clear under the present Code, if there was any doubt before. Article 182 of the 1st schedule of the Limitation Act does not therefore apply to the case, but we cannot accede to the argument that Article 181 also is inapplicable. The case is, it is conceded, not one of those in which the court can proceed and ought to proceed without application and in which the application is necessary only as a reminder; and, if it is a case in which the suit can he raid to be pending, it is not one to which the decisions can be applied which hold that applications to terminate a pending proceeding are not within Article 181. An application here is necessary to commence the proceeding with a view to getting the decree. The court cannot act without an application and has to arrive at a decision on the application. It is conceded that the words of article 181 are wide enough to cover this application; it is now an application under the Code of Civil Procedure, and there are obvious objections to leaving such application to be made at any time however long after the sale of the mortgaged property. We think article 131 is applicable to the case, and the right to apply accrued to the appellant when the sale was confirmed. We cannot accept the contention that the order dated the 29th July 1911 first gave the right to apply. We therefore dismiss the appeal. There will be no costs as the respondent is not represented.