(1.) THIS appeal has been referred to a Division Bench by Mr. Justice Shah because it raises a point of limitation on which there is apparently a conflict in the reported decisions of this Court. The point of limitation arises in this way :
(2.) A compromise decree was passed in a mortgage suit on 27-2-1935. This decree directed the defendant to pay to the plaintiff within six months Bs. 2,530 with costs and future interest at 6 per cent, per annum. On payment of this amount, the defendant was to redeem the property from the mortgage in favour of the plaintiff. The decree further provided for a charge on some other properties of the judgment-debtor which were not the subject-matter of the mortgage. The decree, besides, gave the decree-holder the right to recover the balance, if any, personally from the defendant. In accordance with the terms of this decree a final decree was drawn on 17-3-1936. Thereafter the decree-holder filed darkhast No. 418 of 1936, and in execution proceedings the mortgaged property was sold and Rs. 2,500 was recovered. This darkhast was thus finally disposed of on 31-7-1939. On 28-7-1942, the decree-holder filed the second, darkhast. No. 364 of 1942. In this darkhast he claimed to recover the balance by attachment and sale of the movable properties of the judgment-debtor. This darkhast came to be dismissed for non-prosecution on 6-3-1844. On 11-3-1947, the present darkhast, No. 93 of 1947, has been filed, and in this darkhast the decree-holder has claimed to recover the balance of the decretal amount by sale of the property over which a charge has been created by the decree. It is common ground that if the earlier darkhast No. 364 of 1942 is held to be an application made in accordance with law, the present darkhast would be in time under Article 182, Limitation Act. Between 6-3-1947, to 11-3-1847, the Court was closed and so there would be no difficulty of limitation by reason of the fact that the darkhast was not filed on 6-3-1947, but was filed on 11-3-1947. The executing Court took the view that darkhast No. 364 of 1942 was an application made in accordance with law and he, therefore, held that the present darkhast was in time. That is why he has directed that the execution should be transferred to the Haveri Court for sale of the charged property. When the matter was taken in appeal to the learned District Judge, it was held by him that darkhast No. 364 of 1942 was not an application made in accordance with law and so the present darkhast is not in time. In the result the darkhast application has been dismissed as barred by limitation. It is this order which is challenged before us by Mr. Sukthankar on behalf of the decree-holder.
(3.) MR. Sukthankar contends that the lower appellate Court was wrong in taking the view that it was not open to him to claim the balance of the decretal amount such as it was on 28-7-1942, by the attachment and sale of movable property. According to Mr. Sukthankar it was not necessary that the decree-holder should have pursued the three remedies provided to him under the decree in the sequence in which they are mentioned in the decree. He concedes that the decree seems to provide that the mortgaged properties should be sold first, then the decree-holder should proceed against properties over which a charge was created and it was only if any balance of the decretal amount still remained due that he was authorised to proceed against the other properties of the judgment-debtor on the basis of a personal decree. His argument, however, is that the creation of the charge over non-mortgaged properties of the judgment-debtor was entirely for his benefit and it was, therefore, open to him to give up benefit and seek to proceed to execute the decree as a personal decree for the whole of the amount due after the mortgaged property was sold. In support of this contention Mr. Sukthankar has relied upon the decision of this Court in -- 'ramchandra-rao Gangadharao v. Vithal Keshav', AIR 1948 Bom 143 (A ). In this case the Court was dealing with a decree for maintenance which had provided that the "maintenance debt" should be paid by the defendants out of the family property in their possession and which had laid a charge on certain property for that amount. The decree had also provided that the plaintiff was entitled to put up for sale these properties in execution proceedings. It appeared that in execution of this decree the executing Court had permitted execution to proceed against certain movable property of the defendant other than the property which had been charged under the decree. The judgment-debtor contended that it was not open to the decree-holder to adopt this course because the decree required that he must first proceed against the charged property before he claimed to recover his amount by attachment and sale of other properties of the judgment-debtor. This contention was negatived by Macklin and Bavdekar JJ. The learned Judges took that view that the object of the charge was primarily for the benefit of the creditor and so it was open to him to execute his decree in any order that he pleased, viz. , by proceeding against property not subjected to the charge. The learned Judges realised that the view which they were taking was inconsistent with the view expressed in -- 'raychand Jivaji v. Easappa Virappa', AIR 1941 Bom 71 (B) and -- 'bamabai Balkrishna v. Janardan Eknath', AIR 1943 Bom 158 (C ). But they held that their own conclusion was clearly consistent with the decision of the Full Bench in -- 'gurappa Gurushiddappa v. Amarangji Vanichand', AIR. 1941 Bom 90 (D ). It is unnecessary to pursue this point further, because, it seems to us clear that on the terms of the decree with which we are concerned it was not open to the decree-holder to execute the decree as a personal decree against the judgment-debtor until he had exhausted the two other remedies provided by the decree itself. The words used in the decree, in our opinion, undoubtedly provided for three different modes to enable the decree-holder to recover his decretal amount; but in doing so the decree also provided for the sequence of the mode and manner in which these remedies should be enforced. The sequence has been clearly indicated in the decree and the decree-holder had to follow this sequence while executing this decree. Under this decree, it was only after the mortgaged property as well as the charged properties were sold that the decree-holder could have executed the decree as a personal decree and that too to recover the balance that may still remain outstanding. We must, therefore, hold that the decree-holder would not have been able to proceed against the movable properties of the judgment-debtor in darkhast No. 364 of 1942.