N VISWANATHA SASTRI Vs. SITALAKSHMI AMMAL

JUDGEMENT

(1.) The appellant, petitioner, obtained a decree in the form authorized by Section 88, Transfer of Property A at, on 25th September 1907, time being allowed for payment until 25th March 1908. There was an appeal to this Court which ended maturely in his favour on 23rd February 1901, no further extension of time being given, and the next proceeding was taken on 30th February 1914 by an execution petition headed as presented under Order XXI, Rule 11. In it, tale of the property was inked for and also the passing of a final Jure; and the latter relief was also or separately on 20th March 1914, became; he Court had returned the petition for the creation as to why a separate petition or Such a decree should not be filed. The petition of 20th February 1914 was, however, disliked on 1st August 14, for Failure to pay batter. On 3rd Marsh 1915, the it respondent in the lower Court reported that he had paid Rs. 8 COO towards the, alleging that ha did so in accordance 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 Rs. 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 be taken for 12 years, if applied. creations were made at intervals of not more than three, this being the law as enunciated in this Court s relent decision, Muhammad Husain Saib v. Abdul Karamu Saib 29 Ind. Cas. 237 : 39 M. 544 : 17 M.L.T. 424 on consideration of the judgments of the Judicial Committee therein referred to. If the proceedings, as petitioner contends, were throughout under the Transfer of Property Act, and in execution, there is no don that there was still an executable decree on 5th July 1915, when the fourth respondent reported his payment, because the petitioner s right to execute arose under Article 182 on 23rd February 1911, the date of the appellate decree, and was prolonged by his application on 20th February 1914 until 20th February 1917, This, however, is disputed, because on 1st January 1809, whilst the appeal was pending, Sections 88 and 89 of the Transfer of Property Act were repealed and Order XXXIV of the present Civil Procedure Code came into force. Under Rules 4 and 5 of that Order the stage of execution at which Article 182 can be applied, is reached only when a final decree has been obtained under the latter, and the limitation period for an application to obtain such a decree is, under Article 181, three years from the date on which the period allowed for payment expired. If, as the lower Court has held, the Code procedure became applicable to the ease, the three years were exhausted on 25th March 1St, since no period for payment as fixed in the appellate decree ever came or could come into existence.

(3.) Some arguments were addressed to us for respondents to show that the original decree was superseded by the decree in the appeal, the assumption being that, as the latter was passed after the repeal of the Transfer Property Act, it must be regarded as having bean passed under the Civil Procedure Code and as subject to the Order XAXLV procedure and the application of Article 181, I do not enter on those considerations, because that assumption seems to me unsound, the correct principle being that as a right had already been acquired by the petitioner under the repealed Act and more than mere procedure was in question, he was entitled to a continuance of the proceedings, both in appeal and execution, as though the repealing Act had not been passed. That such a right had been acquire on 25th March 1608, when the period for payment elapsed, in the 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 : 39 M. 544 : 17 M.L.T. 424, 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.