TMI Blog1920 (3) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... with a direction given to declare it, when he purchased the mortgaged property in 1907, applied to have satisfaction entered to that extent and asked that he might have notice of any future application by face decree-holder. The present application for an order absolute and for realization of the amount due by sale was filed on 16th January 1918. The Question is whether it is in time. 2. It was presented as being so with reference Saturday to the payment of ₹ 8,000 and Section 19, Limitation Act, and I return to that contention. But the main difficulties are those with which the lower Court has dealt; and, if they are insuperable, the consequence will be that the petitioner allowed the proceedings to terminate before the application in conception with the 4th respondent's payment, and his right to continue them could not be prolonged or revived by it. Under the Transfer of Property Act, which was in force when petitioner's Built was tried and his decree was obtained, proceedings after Each decree, including the obtaining of the order absolute referred to in Section 89, would be proceedings in execution subject to Article 112, Schedule I, Limitation Act, which would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he shape of competence to proceed immediately in execution, instead of doing so only after the final decree necessary under the Code had been obtained. is, I think, clear with reference to Muhammad Hussein Sail v. Abdul Karim suib 29 Ind. Cas. 237 , already referred to, and the suggestion made to us that petitioner in any degree compromised his right or submitted to a denial of it by his abortive request for a final decree, when the Court, as already stated, returned his application on 20th February 1914, must be rejected. For, no estoppels could arise from conduit, on which his opponent did not change his position, and no rejudicator as to the endowment, under which the proceedings were taking place, when the Court gave no judicial decision, and it is not clear that in it its implied suggestion or petitioner in his compliance therewith drew any distinction between a final decree and an order absolute. 4. The principle above referred to was stated in a decision to which I was a party, Truma Lalsami Naidu v. Subramaniam chettiar 45 Ind. Cas. 109, with reference to Section 6, Act X of 1397, and cohnial Sugar Befining of v. Irving 17 O.C 343 , and it has not been shown that it is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... months allowed, even if it were not, as, it probably would be, reduced to four by the intervention of the vacation, might easily be too little for the completion of contested sale proceedings; and it is useless to reply that six months would afford reasonable time for all that would be necessary for the making of an application; because, no execution being possible after the date of the change in the law, it would be necessary that She proceeding should be completed, rot merely initiated, before that date arrived. It is not possible to assume that the Legislature had in mind the practical difficulties and local consideration, which would arise. I would, therefore, follow the general rule above referred to and the coerce of authority in this Court, and hold that the proceedings throughout were regulated by the Transfer of Property Act, and that the petitioner was entitled to execution until 20th February 1917, and, therefore, on 23rd August 1915 when the application by the 4th respondent next relied en was made. The purport of that application has already been given The lower Courts no doubt have not referred to it. But on the view they took it was not necessary for them to do BO, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at to the decree under execution, the provisions of Order XXXIV of the Civil Procedure Code have no application. There is come difference of opinion in this Court, when the decree is passed under the Transfer of Property Act, but the time fixed for payment accrues after the Civil Procedure Code had some into force, whether the procedure provided by the Act or the one provided by the Code should be followed. But there is no difference where the date of the decree as well as the date fixed for payment were before the Code same into force. Mr. Muthiah Mudaliar, for the Respondent, relied upon Bisseshur Sanamat v. Jasoda Lal Chowdhury 19 Ind. Cas. 391 for the view that if execution is started after the code, the Act has no application. Although that decision has not fens followed by Old field and Sadasiva Aiyar, J.J., in Natesa Vdayan v. Annasami Udayan 34 Ind. Cas. 756 still, having regard to the high authority of Sir Lawrenae Jenkins, I shall examine it once again. 8. In that case, the question was whether the limitation provided by Section 48 of the Civil Procedure Code governs decrees passed under the Transfer of Property Act. The learned Chief Justice first pointed out that, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he decree, which was executable without obtaining a final decree under the Act, changes, its character when the code comes into force; and whether as a result of it, parties are compelled to regard an executable decree as a preliminary decree. In my opinion such a conclusion is not warranted by Order XXV of the Code. I shall no sir proceed to discuss the other questions. 10. The next question which was argued with great insistence on both sides was whether it is the date of the appellate decree or that of the decree of the first Court that should be taken into astound in deciding whether the Act governs the application or the Code. There are authorities for both the contentions, but having regard to the recent decision of the Judicial Committee in Hukum Chand Boid v. Pirthichand Lal 50 Ind.Cas. 444: (1919) M.W.N. 258 I do not think that the earlier decisions need be discussed very fully. In that case, there was a considered pronouncement by the Privy Council. I do not agree in the least with the suggestion of Mr. Muthiah Mudaliar that it was an obiter dictum. In the early portion, their Lordships say definitely that, although it is open to question whether Article 97 of the Limi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ramchandra Anna Pai 53 Ind. Cas. 550 : 13 L.W. 82 (P.C), which enunciates that the liability of the surety can be enforced within three years of the passing of the appellate decree, is in accordance with the view taken by the Judicial Committee in Bighubur Singh v. Jai Indra Bahadur Singh 53 Ind. Cas. 550 : 38 M.L.J. 302 : 13 L.W. 82 (P.C) that the liability of the surety extends to the passing of the final decree in the suit for which he stood surety. Sheosagar Singh v. Sitaram Singh 24 C. 616 (P.C.) related to the question whether the finding of a lower Court not poured in by the Appellate Court will operate as res judicator. It was pointed out that for the purpose of ret judicata, the finding of the first Court must be deemed to have been superseded by the finding of the Appellate Court. I fail to see how this affects the present question. The same observations apply to Abdullah Asher Ali Khan v. Ganesh Dass 42 Ind. Cas. 959.15 A.L.J. 889 . The decisions of this C jurt in Kritinarna chariar v Mangamil 26 M. 91, in Manamkraman v. Unniappan 15 M. 170 and in Arayil Kali Amma v. Sankaran Nambudripad 5 Ind. Cas. 420 do not directly deal with the point we have to decide. Some of them ..... X X X X Extracts X X X X X X X X Extracts X X X X
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