MURALIDHAR ROY CHOWDHURY Vs. KATHERINE STEPHEN

JUDGEMENT

(1.) This appeal arises out of proceedings in execution of a decree.

(2.) It appears that the decree-holders obtained a mortgage decree for Rs. 43,000 odd on the 25th July 1898. The mortgage-decree not only directed the sale of the mortgaged properties but also provided that "if the whole decretal amount be not satisfied with the purchase-money obtained at the said auction-sale, then the balance remaining due be realised from the other properties of the judgment-debtors." Some of the mortgaged properties were sold in 1397 and others in 1907 and a portion of the decretal amount was realised. On the 15th January 1910 an application was made for a personal decree under Section 90 of the Transfer of Property Act for about Rs. 11,000 and a decree was accordingly made under that section. Since that date and previous to the present application, there were two applications for execution, one in the year 1913 and the other in 1915, but nothing was realised in those execution cases. On the 12th September 1918 the present application for execution was made. Objection was raised by the judgment-debtor on the ground that 12 years having elapsed from the date of the original decree dated the 25th July 1396, the present application for execution is barred by limitation. The learned Subordinate Judge has allowed the objection, relying on the two cases mentioned in his order, and the decree-holder has appealed to this Court.

(3.) There is no doubt that if the 12 years is to be counted from the date of the original mortgage decree dated 25th July 1896, the present application is barred under Section 48 of the present Code of Civil Procedure. It is also true, as stated above, that the original mortgage-decree contained a provision for sale of other properties in the event of the sale of the mortgaged properties proving insufficient to satisfy the decree. A personal decree under Section 90 of the Transfer of Property Act, however, was passed on the 15th January 1910 and it was passed after notice to the judgment-debtors. Whether it was necessary or not, the decree must be held to be valid and binding so far as the parties to it are concerned, as it was never set aside on appeal or otherwise. So far as the parties to it are concerned, the personal decree must be taken to have been passed on the 15th January 1910, which is within 12 years of the present application.