Nimmala Mahankali v. Kallakuri Subba Rao

1. The decree in the original suit was passed on 28th September 1908. It gave the judgment-debtor six months to pay the amount of the decree; consequently the decree-holder could have executed the decree only after 28th March 1909. On 1st January 1909, the new Code of Civil Procedure came into force. O. 34 of the Code enacted new rules of procedure for the execution of mortgage decrees. Against the decree of the first Court, the decree-holder appealed first to the District Judge and then to this Court. The final decree on second appeal was passed on 29th July 1910. An application for execution was presented on 18th July 1913, that is, within three years of the final appellate decree. The present application was made on 19th August 1914, for a decree absolute. It was objected by the defendant that this application was barred by time. The Subordinate Judge disallowed the objection and granted execution. Hence the appeal. The first point taken by Mr. Ramdoss is that the article applicable to the application is 181 of the Limitation Act and not Article 182. We think he is right. Mr. Somayya contended that as, on the date of the Munsif's decree, the new Code had not come into force and as it was well settled under the Transfer of Property Act that applications for orders absolute were governed by Article 182, his client was entitled to apply for the order absolute as if he were presenting an execution application.

2. The point is one of first impression, but we think, after consideration, that the contention is not well founded.

3. On the date of the right to apply for an order absolute accrued, the new Code was in force and in matters of adjective law, the rules of procedure which are in force at the date the right to apply accrues, would govern all the applications. We think therefore that the application was governed by Article 181 and not by Article 182. The decision in Mahammad Hussain v. Abdul Kareem(1) is not against this view. In that case, the right to apply had accrued under the Transfer of Property Act and the earlier applications were all made under the said Act. It was held, following Abdul Majid v. Jawahir Lal(2), that such applications were in execution and that the decree-holder having acquired a right to apply in a particular manner under the Transfer of Property Act, that right was not taken away by the provisions of O. 34. That decision is not applicable to a case where a right accrues for the first time under the new Code, which has provided a complete remedy for such applications. The decisions in Lakshmi Achi v. Subbarama Aiyar(3), Bensi Singh v. Barhamdeo Singh(4) and Madho Ram v. Nihal Singh(5) support this position, although the learned Judges in some of these cases have held that even under the Transfer of Property Act, the application should have been under Article 181, Lim. Act.

4. The next point for consideration is whether under Article 181, Lim. Act, the time begins to run from the date fixed in the original decree for payment or from the date of the decree in second appeal. The decisions are practically unanimous that where the appellate decree confirms the decree of the first Court and is silent regarding the time fixed for payment by the Court of first instance, a further period would not be given for payment from the date of the appeal decree. Rama swami Kone v. Sundara Kone(6) and Thathara Nandabha Chetty v. Kuppal Krishnammal(7). A further proposition follows from these judgments, namely that the party in default is not entitled to reckon the time from the date of the appellate decree. The position of party who is not bound to perform any act under the decree but who appeals to get a larger benefit than what the first Court's decree granted him is not covered by any direct authority. The principle applicable to such cases is that ordinarily the decree executable is the decree in appeal: see Manavikraman v. Unnippan(8): and if the decree-holder has not discboyed any directions given by the first Court, he would be entitled to reckon the period in his favour from the date of the appellate decree. The observations of Benson and Wallis, JJ., in Ramaswami Kone v. Sundara Kone lend support to this proposition, and we think it is sound in principle and is in consonance with justice. We are therefore of opinion that even under Article 181, the right to apply accrued to the respondent only on the passing of the decree in second appeal. It was conceded that if time accrued from the date of the appellate decree, the present application would not be barred by limitation. We must therefore hold that the order of the Subordinate Judge is right and dismiss the appeal. Each party will bear his own costs in this Court.

S.N/R.K

5. Appeal dismissed.