Jenkins, C.J:— The Appellant is a mortgagee, and the mortgage under which he claims is dated the 25th of January 1886. On the 16th of December 1886, he obtained a decree on his mortgage by consent. On the 3rd of July 1909, he made the application; out of which the present appeal arises; and by the application, he asks that he may be at liberty to add Upendra Lal Bose as a party Defendant to the suit, and that thereafter he may be at liberty to proceed to sell, pursuant to the decree made in this suit on the 16th of December 1886, an undivided quarter share of the Defendant Sarat Chunder Mukerjee of and in premises No. 30 formerly No. 49, Clive street, Calcutta, and Nos. 2 and 3, Bishoo Babu's Lane, Kidderpore, and the family dwelling-house at Kidderpore, and that for the purpose of such sale all necessary directions may be given to the Registrar. Mr. U.L Bose's position is that on the 8th of April 1903 he became a purchaser of the Clive Street property, and in his affidavit he states that “he is a bona fide purchaser for full market value, that he had no notice of the Plaintiffs claim, that he had laid out large sums of money with borrowed funds in the improvement of the property and that other persons besides himself have got an interest therein and that it would be extremely hard if after the lapse of 23 years the Plaintiff is allowed to assert a claim which he had given up years ago.”

The case was heard by. Mr. Justice Fletcher, the parties before him being the applicant, the mortgagee, on the one side and on the other, the mortgagor and Mr. U.L Bose who resisted the application with success. From the judgment of Mr. Justice Fletcher the present appeal has been preferred; and, I will, at the outset deal with a point taken on behalf of Mr. U.L Bose. His name does not appear as a Respondent, and, therefore, it is maintained, as against him the judgment of Mr. Justice Fletcher cannot be touched. But it appears that the Appellant, according to his lights, made, very effort he could to make Mr. U.L Bose a party Respondent. He may not have proceeded in the most approved manner, still undoubtedly he was anxious to have Mr. U.L Bose as a Respondent, and naturally anxious. Having failed in his endeavour because, he save, he could not persuade the Court officers to grant the necessary process, he has applied under r. 20, Or. XLI that Mr. U.L Bose may be added as a Respondent here. It has been suggested that the Court has not power to do that inasmuch as the time for appealing has elapsed. Counsel has even been able to cite a case which he thought bore out that view, but I think the case has been misunderstood and it merely amounts to this that it is a question for the Court in its discretion to determine in each case whether or not it will make an order contemplated by r. 20, Or. XLI. I have indicated the circumstances under which it became necessary to make the application in this case, and I think that the Appellant certainly is entitled to ask that Mr. U.L Bose should be made a party, and that therefore the order to that extent should go. Therefore, I propose to deal with this appeal on the footing of Mr. U.L Bose being a Respondent before us.

It will he seen that the two critical facts are, first, that the decree on the mortgage was made so far back as the 16th of December 1886, and that the present application is made in 1909. Those dales have naturally prompted the Respondents to raise a plea of limitation and to suggest that there must be some mode of limiting litigation. The question that we have to decide is whether the applicant is right when he contends that he is, so far as this application goes, free from the law of limitation.

Now the decree first provides for a personal decree against the mortgagor and this is followed by a provision for the return of documents and so forth on payment in accordance with this personal decree. Then there is a provision that in default of payment there is to be a sale of the property, and it is further ordered that if the money realised by such sale shall not be sufficient for the payment in full of the sum of Rs. 25,382-8 as with interest, that being the amount for which the personal decree was passed, then the Defendant should pay to the Plaintiff the amount of the deficiency together with the Plaintiff's costs. The decree is in a sense peculiar, and that has led to a contention before us on the part, of the Respondents that it does not come within the provisions of the Transfer of Property Act in general or of sec. 88 and 89 in particular. No doubt, if those sections be read literally, that is so. On the other side it is contended that the decree comes within the provisions of the Transfer of Property Act, and it is on that ground principally that it is contended in the light of the cases that the present application is not barred.

For the purpose of my judgment I will assume that this decree is within the Transfer of Property Act, and I prefer to put it on that broad ground rather than to seek minute distinctions, though I can quite see that the decree does encourage the distinctions which have been suggested.

Now if it be a decree, as the Appellant before us contends, under sec. 89 of the Transfer of Property Act, and was such a decree in 1886 when if was passed, then it is clear, that no further decree was to follow on it. All that was to follow on it was, under sec. 89, an order for sale:—It is no use our looking into expressions in the cases, for the purpose of determining this; the Act itself is clear and plain. It provides in sec. 88 that there shall be a decree for sale. Sec. 89 provides that if such payment, that is the payment contemplated by the decree, ‘is not made, the Plaintiff or the Defendant, as the case may be, may apply to the Court for an order absolute for sale of the mortgaged property, and the Court shall then pass an order that such property, or a sufficient part thereof, be sold, and that the proceeds of the sale be dealt with as is mentioned in sec. 88; and thereupon the Defendant's right to redeem; and the security shall both be extinguished’. Now, what is, speaking generally, the nature of that order for sale? In Horendra Lal Roy Choudhuri v. Maharani Dasi, there was a decree for sale, substantially as there was here, and the Respondents in that case, the mortgagors, being in default, the Appellant petitioned for an absolute order for sale. Lord Davey in disposing of the case says in the course of his judgment, “under the circumstances it is not surprising that the Respondents were not able to find the money on the stipulated day; and thereupon the present Appellant presented a petition, for realization of his entire decree by sale of the mortgaged properties”. He goes on to say, in describing what had been done by the learned Subordinate judge who acceded to the application; “The learned Subordinate Judge in the first instance gave the Appellant execution for the whole amount of his decree”. So that, at any rate, it appeared to the Privy Council and to Lord Davey in that case that an application for an order for sale was a petition for realization by the mortgagee of his decree.

Now this case falls within the provisions either of Article 183 or Article 181 of the Limitation Act, it does not fall within the provisions of Article 182. Article 183 deals with an application “to enforce a judgment, decree or order of any Court established by Royal Charter in the exercise of its Ordinary Original Civil jurisdiction or an order of his Majesty in Council,” and provides a period of twelve years from when a present right to enforce the judgment, decree or order accrues to some person capable of realising the right”. If this case comes within Article 183, it is free from the embarrassment of the conflicting decisions which have arisen under Article 182. If and so far as this can be regarded in the words of Lord Davey, as ‘an application for realization of a decree,’ it is not unfair to say that it is an application to enforce a judgment. The word “enforce” has a fairly obvious meaning. We have been referred to one or two dictionaries as to what its meaning is. But I take it to be clear, even apart from the dictionaries, that the word “enforce” is not limited to realization by execution but may have a wider meaning. So even if it can be said that the present proceeding is not strictly in execution but is a form of judicial relief under a decree, it still would legitimately come within the expression “to enforce a decree,”—And it seems to be manifest that it is either a proceeding in execution or a proceeding for judicial relief under a decree and I see no reason why Article 183 should not apply. If that be so, then it follows that this application is out of time.

I do not propose to make more than a passing reference to the argument that has been addressed to us in relation to Article 181.

There have been brought to our notice numerous cases on Article 181 and Article 182—Arts. 178 and 179 of the former Limitation Act which they reproduce—with a view to showing that these articles did not apply in the past to an application under sec. 89 of the Transfer of Property Act, and that by parity of reasoning they couldh not govern applications under the substituted provisions of Order XXXIV of the Code of Civil Procedure. In this connection it has been a matter of argument and of considerable contest before us as to whether this case is to be decided by reference to the old Code and the old Limitation Act, or by reference to the new Code and the new Limitation Act, both of which came into operation on the 1st of January 1909. If the view I have expressed as to the application of Article 183 be right, no question of this kind arises inasmuch as the Plaintiff in 1886 obtained a decree which required no supplemental decree, but required only an order. Had the decree been an incomplete one and required a further decree, then having regard to the way in which Acts in reference to procedure are to be construed, possibly the provisions of the present Code would have been applicable. But, be that as it may, I fail to follow the line of reasoning which would suggest that Article 181 would still not have presented a bar to the application for this further decree. One object in view when the present Code was passed was to end, as far as possible, the conflict of decisions which embarrassed the Courts, and among those conflicting decisions were those which dealt with two points:—First of all, whether an application for an order under sec. 89 of the Transfer of Property Act was an application in execution or not, and, secondly, whether, if it was not an application in execution, Article 181 constituted a bar on the ground that the application was one not contemplated by Code of Civil Procedure. Those were not the only points that were sought to be set at rest, but those were prominent among them. And, the Act indicates that the scheme whereby these two sets of conflicts were to be composed was, in the first instance, by making it clear that an application which was to follow on a preliminary decree for sale, was not to be an application in execution, inasmuch as the next step under Or. XXXIV, r. 5 is not for an order for sale but for a decree for sale. And the mode in which the other conflict was composed was by taking the provisions as to mortgage suits out of the Transfer of Property Act and bringing them within the Civil Procedure Code, so that it would no longer be possible to contend that Article 181 applied on the ground that these applications are not under the provisions of the Civil Procedure Code. I am aware that there is an opinion expressed in Madhub Moni Dasi v. Pamela Lamberi, which it may be difficult to reconcile with this, but it is not a decision, for as I read the judgment in that case, the learned Judges expressly refrained from deciding the point which was a necessary preliminary to its becoming a point calling for actual decision. It could only be a point for decision if and when it was decided that the new Code applied. But so far from there being any such decision, the learned Judges not only expressly refrained from deciding this, but the decision actually passed by them in effect negatived the view that the case fell under the new Code, for in conformity with the terms of the application out of which the appeal arose they decided that there should be an order absolute and not a final decree for foreclosure. I have referred to this matter, as I desire for future consideration, when the point actually arises for decision, whether or not Article 181 presents a bar to an application for a final decree, whether it be under r. 5 or r. 3 of Or. XXXIV when that application is made beyond the time contemplated in Article 181, for as yet there has been no actual decision on this point in the view I take of the case reported in Madhub Moni Dasi v. Pamela Lambert.

The result is that for the reason which I have indicated in the earlier part of my judgment, I think Mr. Justice Fletcher rightly decided that the present application was barred, and that therefore this appeal should be dismissed with costs; Mr. U.L Bose is entitled to a separate set of costs.

Woodroffe, J.:— I agree.

Babu Bhringeswar Srimani, Attorney for the Appellant.

Mr. U.L Bose, Attorney for the Respondent.

A.K.G

Appeal dismissed.