MOIDUNNI Vs. ALU

JUDGEMENT

(1.) The short point for decision in this second appeal is whether an application under Order XXXIV, Rule 4 of the C.P.C. for a final decree in a mortgage suit presented more than three years after the date of the preliminary decree, is barred by limitation or not. The two courts have held that the application is barred. Hence this second appeal. Order XXXIV, Rule 4 prescribes, that in a suit for sale, the preliminary decree shall further direct, that in default of the defendant's paying the amount on the mortgage, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold. In terms, the section speaks of an application for the passing of a decree, and has therefore to precede the execution thereof. It is impossible, in my opinion, to treat such application as one for the execution of a decree. Certainly the application for a final decree is not for the execution of the final decree, because that decree has yet to be passed; nor is it by way of execution of the preliminary decree, rather than of implementation of a direction in it. That an application of this character is not one for execution, receives considerable support from the decision of a Full Bench of the Calcutta High Court in Francis Higgins Pell v. Minnie Gregory (AIR 1925 Calcutta 834) where an application under Order XXXIV, Rule 6 C.P.C. was held to be an application to which Art. 181 of the Indian Limitation Act applied and not an application for execution. A similar view was taken by Division Bench of the Nagpur High Court following earlier decided cases, in Hirekhan v. Narbada Baj (AIR 1952 Nagpur 177). It must therefore be held, that the application made by the appellant was not for the execution of a decree.

(2.) The application would be saved from limitation, only if the concerned provisions of The Madras Indebted Agriculturists (Temporary Relief) Ordinance, 1953 or The Madras Indebted Agriculturists (Temporary Relief) Act, 1954 or The Madras Indebted Agriculturists (Repayment) of Debts Act, 1955, were applicable. The provisions in the Ordinance and in the Act of 1954 aforesaid are similar. S.3 in each of these enactments provides, that no suit for the recovery of a debt shall be instituted and no application for the execution of a decree for money in such suit shall be made, against an agriculturist for the period of one year, and S.4 enacts, that further proceedings in suits, except those of the categories specified, and applications of the nature mentioned in S.3, obviously referring to applications for execution of decrees, shall stand stayed for a period of one year from the commencement of the enactments. An application for a final decree may perhaps be considered to be a further proceeding in a suit under S.4 above, but then, the appellant is confronted with another difficulty, in that S.5 in each of these enactments, which provides for exclusion of time in computing the period of limitation, has reference only to suits and applications for execution as described in S.3. So the present application for a final decree is not saved by the provisions of S.5 of either the Ordinance of 1953 or the Act of 1954. Under the Act of 1955, there is no provision which corresponds to S.4 of the Ordinance or of the Act of 1954, S.3 therein imposing a bar only on the institution of a suit and on the making of an application for the execution of a decree, and S.8 providing for the exclusion of time during which the institution of the suit or the making of the application was barred. The two courts were therefore correct in holding that the application for final decree made by the appellant was not saved by any of these enactments and that it was barred by limitation under Article 181 of the Limitation Act. This appeal is dismissed with costs.