NAZIRAN BIBI Vs. ALI AHMAD

JUDGEMENT

(1.) The respondent, Musammat Naziran Bibi, and one Bismillah Bibi, obtained a decree for foreclosure against the appellant under Section 86 of the transfer of Property Act, 1882, on the 27 of November, 1897. For the payment of the mortgage money the decree allowed a period of six months, which expired oh the 27 of May, 1898. On the 23 of May, 1901, Musammat Naziran Bibi applied under Section 87 of the Act for an order absolute for foreclosure. That application was resisted on two grounds--first, that it was barred by limitation; and secondly, that Naziran Bibi alone was not competent to make it. The plea of limitation has been overruled by both the Courts below. With reference to the other plea, the lower appellate Court has reversed the order of the Court of first instance, and remanded the case to that Court under Section 562 of the Civil P. C.. From this order of remand the present appeal has been brought.

(2.) The plea of limitation has been repeated before us, and it is urged that under Art. 179 of the second schedule of the Indian Limitation Act, limitation should be computed from the date of the decree under Section 86, and not from the dateon which, according to that decree, the mortgage money was payable.

(3.) According to the rulings of this Court an application for an order under Section 87 of the Transfer of Property Act is an application in execution. In Kedar Nath v. Lalji Sahai (1889) I.L.R. 12 All. 61 it was held by a Full Bench that the order mentioned in that section is an order in execution of the substantive foreclosure decree. It necessarily follows that an application for such an order is an application in execution. This view was upheld in the later Full Bench case of Oudh Behari Lal V/s. Nageshar Lal (1890) I.L.R. 13 All. 278. In that case it was held that an application for an order absolute for sale under Section 89 is a proceeding in execution, and subject to the rules of procedure governing such matters. The ruling in Kedar Nath V/s. Lalji Sahai was approved of, and although, as stated above, the case was one to which Section 89 applied, reference was made to Section 87, and the same rule was held to apply to applications under both the sections. Following the principle of these rulings and of the decision in Chunni Lal V/s. Harnam Das (1898) I.L.R. 20 All. 302 it was held in Parmeshri Lal V/s. Mohan Lal (1898) I.L.R. 20 All. 357 that an application for an order under Section 87 of Act No. IV of 1882, is an application in execution to which the provisions of the Limitation Act apply. With this view we entirely concur.