BISSESWAR SONAMUT Vs. JASODA LAL CHOWDHRY

JUDGEMENT

(1.) This is an appeal from an appellate order made in execution proceedings. The decree- holder, who had obtained a decree on a mortgage, applied, successfully to the Court for sale of the property. Thereupon, the judgment-debtor presented tire application out of which the present appeal arises. He sought to have this sale-order set aside on the ground that the application was barred under Section 48 of the Code of Civil Procedure. His application was dismissed by the Subordinate Judge, and this order has been confirmed by the lower Appellate Court. It is from this last order of the lower Appellate Court that the present appeal is preferred. It is necessary to set out a few facts to explain the case. The preliminary decree on the mortgage was passed on the 22nd of September, 1896, and it was made absolute on the 27th of April, 1897. The application for sale which is impugned by the application now under consideration was made on the 18th of December, 1911, more than twelve years beyond the date of the decree. This, it is said, brings into play the provisions of Section 48 of the present Code of Civil Procedure, which provides that "where an application to execute a decree (not being a decree granting an injunction) has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree sought to be executed." By way of answer to this, it is brought to our notice that there were many applications for execution, and that on the 28th of April, 1908, the seventh application was preferred. On that application there was a sale, but on the 9th of May, 1911, that sale was set aside by the High Court. The decree-holder again sought to make his decree fruitful and made an application for sale. That was allowed by the Subordinate Judge, but on appeal the District Judge dealt with the matter in this way: He said- --"It is urged on behalf of the judgment;, debtor that inasmuch as the original prayer was superseded by the amended application there was only one prayer which was for the sale of half the property, and that having been declared illegal there is no application at all of which the Court can take cognizance. This argument appears to me to be well-founded. There can be no doubt that the amended application took the place of the original application, which is therefore to all intents and purposes nonexistent. That being so, I cannot see how, when the amended application has been dismissed, the decree-holders can now fall back on the original as though it were still unamended. I would, therefore, allow this appeal, leaving the decree- holders to rile a fresh application." The just result of that order was that the application of the 28th of April, 1908, was dismissed. It is the order of dismissal that has occasioned the trouble in this case. The first question that we have to consider is whether the application for sale, which was subsequently granted and is now being Impugned, is a fresh application within the meaning of Section 48, or a continuation of the application of the 28th of April, 1908. Seeing that the application of the 28th of April was dismissed, it appears to be impossible to treat this as a continuation of that dismissed application. Is it then a fresh application within Section 48? It has been argued before us that it is not, or at any rate, that the bar that arises after the expiration of twelve years, as provided by that Section, does not apply. There is authority for this view in Kaunsilla v. Ishri Singh (1910) I.L.R. 32 All. 499. But I must confess that I feel some difficulty as to the decision in that case. When it was put to the learned vakil for the respondent in this case whether he was making his application under the Code of 1908 or the repealed Code of 1882, he had to concede that it was the new Code of 1908. If so, then Section 48 is an integral part of that Code, and no application under that Code, as it appears to me, can be made in disregard of its express conditions. I say that, bearing in mind the provisions of Section 6 of the General Clauses Act. In this connection it is important to observe that the Legislature evidently considered this Code might and would interfere with rights, for there is an express provision in Section 154 that "nothing in this Code shall affect any present right of appeal which shall have accrued to any party at its commencement," a provision that would have been unnecessary unless the Code as framed would affect existing rights under the old Code. It has been urged before us that this view would involve hardship, that rights would be imperilled, if not confiscated; but this overlooks the provision which prescribed that, though the Code was passed in March 1908, it should not come into operation until January 1909. That provision afforded ample opportunity to all persons having rights under the old Code to enforce them before the new Code came into operation.

(2.) In my opinion the decision of the District Judge is erroneous, and I think his order must be reversed, and the application for sale set aside as barred by Section 48 of the Code of Civil Procedure.

(3.) The respondent must pay the appellant s costs. Mullick, J.