Allsop, A.C.J:— This is an appeal under the Letters Patent against the judgment of a learned single Judge of this Court. The appellants had executed a mortgage and the respondent had obtained a preliminary decree for sale against them. Before he could apply for a final decree the appellants made an application under section 4 of the Encumbered Estates Act. The Collector passed an order under section 6 of that Act on December, 23, 1956. The proceedings remained pending until May 25, 1939 when the application was dismissed for default in the payment of printing charges. The respondent then made an application for a final decree on the basis of his preliminary decree for sale and was met by the plea that his application was barred by limitation. It was barred if the period between December 23, 1936 and May 25, 1939, was not excluded but it was not barred if this period was excluded and the question arose whether the law allowed the exclusion of this period. The trial court and the lower appellate court held against the respondent but the learned single Judge of this Court applied the principles of section 15 of the Limitation Act and held that this application for a final decree was within time. This is an appeal against his judgment.
After hearing considerable argument about this matter we have come to the conclusion that the learned single Judge was right. It was held by this Court in the case of Hulas Singh v. Data Ram(1) that the rule in section 15 of the Limitation Act applied to suits and applications for execution stayed under the Encumbered Estates Act because the stay was the indirect result of the order passed by the Collector under section 6 of the Act. It was also held by the Bombay High Court in the case of Govindnaik Gurunathnaik Kalghatgi v. Basawannewa Parutappa Karajgi(2) that an application for a final decree in a suit on the basis of a mortgage should be considered to come within provisions of section 15 of the Limitation Act. Such an application is in effect an application to obtain execution of the decree for recovery of money by the sale of property, although in form it is a preliminary step before actual execution can be taken out. There is no reason in principle why this particular type of application should be excluded from the relief allowed by section 15 of the Limitation Act. We would therefore follow the authorities we have quoted and agree with the learned single Judge.
It has been assumed that section 43 of the Encumbered Estates Act does not apply to this case. We have some doubt upon this point because if section 43 does apply to cases of this kind it would appear that all rights of suit or recovery of money would disappear merely from the fact that a debtor had failed to pay the necessary fees for the issue of an advertisement which seems a somewhat extraordinary result for the Legislature to produce. We, however, do not express any definite opinion upon this point as we agree with the learned single Judge about the application of section 15.
The result is that the appeal fails and is dismissed with costs.
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