BACHARAJ NYAHALCHAND MARWADI Vs. BABAJI TUKARAM AVAIL

JUDGEMENT

(1.) The facts which give rise to this appeal are as follows :- On the 3rd July 1900 the plaintiff obtained a decree in the terms of an award, whereby he was required to pay a sum of Rs. 600 by annual instalments of Rs. 50 and to redeem the mortgaged property. It was further provided in the decree that "if the plaintiff failed to pay any two instalments to the defendant in time, his right to redeem the mortgaged lands should for ever be foreclosed and then the said lands should be taken by the defendant into his possession from that of the plaintiff. Till then the lands should be allowed to remain in the possession of the plaintiff himself." Subsequent to this decree, two instalments in full for 1902 and one instalment in part for the year 1903 were paid by the plaintiff to the defendant. No other instalment was paid thereafter. An application was made on the 20th July 1905 to the Court for certifying those payments in satisfaction of the decree. This application was signed by the plaintiff and was consented to by the defendant. On the 14th December 1907 an application was made by the defendant for an order of foreclosure in terms of the decree ; but that application was dismissed, because no steps to prosecute the same were taken. The present application was made on the 20th of March 1909. The defendant by this application seeks to have an order of foreclosure in the terms of the decree.

(2.) The plaintiff raised objections to this application and urged that the application was barred by limitation. Both the lower Courts have found in favour of the plaintiff and held that the application is barred by time.

(3.) The defendant has preferred the present Second Appeal, and has urged in support thereof that the lower Courts have wrongly decided the question of limitation. It is contended that the present application for an order for foreclosure is really an application under Section 93 of the Transfer of Property Act, and that there is no period of limitation applicable to such an application. It is further urged that even assuming that there is a period of limitation to which this application is subject, still having regard to the application of the 20th of July 1905 and to the previous darhhast of December 1907, the present application is in time.