Ramasami Reddi v. Sokappa Reddi & Another Respdts.

Spencer, J.:— On further consideration I am not satisfied that the decision, dated 20th March 1917, of Srinivasa Aiya ngar, J, and myself in Appeal against Appellate Order No. 95 of 1916 was wrong. It is argued on the strength of the subsequent decision by another Bench in Nimmala Mahankali v. Kallakuri Subba Rao(1) that the fact that in this case the date for payment was the date after the Code of 1908 came into force is enough to distinguish this case from the cases in Balaji Rao v. Harirama Chetty(2), Singaravelu Pillai v. Santhana Krishna Mudaliar(3), Mahammad Husain v. Abdul Kareem(4) and Natesa Udayan v. Annasami Udayan(5) which we followed. I think that a final and executable decree was passed in this case under the Transfer of Property Act, notwithstanding that the direction in the decree for sale of property was made conditional on default of payment of the amount found due to the plaintiff by a certain date. With due respect to the learned Judges who decided Nimmala Mahankali v. Kallakuri Subba Rao, I am of opinion that the introduction of the new Code did not give rise to any new right under Article 181, Limitation Act to have a fresh final decree passed in consequence of the provisions of the Transfer of Property Act, under which these proceedings commenced, being superseded (see Section 6 of the General Clauses Act). In other words, if Article 182 governed the proceedings on 16th July 1908 when the decree was passed, the introduction of the new Code of Civil Procedure on 1st January 1909 did not have the effect of making it incumbent on the decree-holder to apply under Article 181 for a final decree under O. 34, R. 5. The second appeal must be again dismissed with costs.

Sadasiva Aiyar, J.:— I fully concur in the opinion just now pronounced by my learned brother.

2. The question whether Article 181 (old Article 170) or Article 182 (old Article 179) of the Limitation Act is applicable to an application for an order absolute under the Transfer of Property Act procedure is of little importance as, whether the former or the latter article applied to the initial application, a subsequent application, whether for an order absolute or for execution in the strict sense, will be governed by the provisions of Cl. 5, Article 182, which gives 3 years' period from the fresh starting point created by the initial application, which is an application for execution or; at least, an application to take a step-in-aid of execution. See however Abdul Majid v. Jawahir Lal(6) which shows that Article 182 (old Article 179) is the Article really applicable even to the initial application. I am further of opinion that having regard to the Section 6, Clause (c) of the General Clauses Act, the repeal of the provisions of the Transfer of Property Act could not deprive the holder of a mortgage decree passed under it of his “remedy” by way of getting an order absolute “in respect of” his right under the decree so as to make it executable in the strict sense. I therefore dissent respectfully from the obiter dicta in Nimala Mahankali v. Kallahuri Subba Rao on which the petitioner relies and agree that the second appeal should be dismissed with costs.

S.N/R.K

3. Appeal dismissed.