DATTO ATMARAM HASABNIS Vs. SHANKAR DATTATRAYA

JUDGEMENT

(1.) THE application in this case is for a decree absolute for sale of a mortgage charge, the property of the defendant, under the terms of a consent-decree. THE consent-decree provided for satisfaction of the decretal debt by installments. Three years from the due date of the last instalment becoming payable expired in July 1910. THE application which we are now considering was made subsequent to that date. THE question is whether it was barred by limitation? THE lower Courts have held that the debt due to the plaintiff was moveable property, and that, therefore, there was no need for an application for a decree absolute. THEy based the decision upon Tarvadi Bholanath v. Bai Kashi (1901) I.L.R. 26 Bom. 316, 305 : 4 Bom. L.R. 18. THE question there turned upon whether the execution proceedings had been initiated under the right section of the Civil Procedure Code.

(2.) THAT question does not arise in the present case. But although we cannot accept the reasons of the lower Courts, we think that the application must fail. The reason is that this is an application in form for a decree under Order XXXIV of the Civil Procedure Code, and it is contended on behalf of the appellant that it must be treated as under Order XXXIV, and no other order. THAT being so, it is an application under the Civil Procedure Code, and as such falls within the scope of Article 181 of the Limitation Act: see Amlook Chand Parrack v. Sarat Chunder Mukerjee (1911) I.L.R. 38 Cal. 913. The application under Article 181 must be made within three years from the time when the right to apply accrues. It has not been made within that period, and is, therefore, barred. We, therefore, dismiss the appeal with costs.