ITIKYALA PEDDA ASWATHAPPA Vs. ANKULUGADU

JUDGEMENT

(1.) The Chief Justice.--In this case a mortgage decree was obtained in November 1908 under Section 88 of the Transfer of Property Act which then applied. By the terms of that decree, if the amount of the mortgage was not paid by a certain date, the mortgaged property could be brought to sale. In 1911 an application was made to make the order absolute, which was the procedure prescribed under the Transfer of Property Act, and an order was passed. In 1914, 1915 and 1917 unsuccessful attempts were made to bring the interest of the mortgagor in the mortgaged property to sale, and the application which resulted in this appeal was launched in August 1920. An order was made for sale by the District Munsif in October 1920. The mortgagee having got his order after all those years was met by an appeal to the Subordinate Judge in which it was alleged--and it had been alleged before the District Munsif also that the execution proceedings were all void ab initio because he had not obtained a proper final decree in his mortgage suit. That was based on the fact that, between the date of the original decree in 1908 and the date of his application to make that decree absolute, the sections of the Transfer of Property Act dealing with the matter had been repealed and their place taken by the Civil P. C., 1908, Order XXXIV, which by Rule 5 (2) requires, first of all, a preliminary decree to be obtained and if the money is not paid by the date named in the preliminary decree then an application shall be made to the Court, and, instead of the decree for sale being made absolute, as used to be the practice, a final decree passed. The learned Subordinate Judge found that that point was a good one and, therefore, these execution proceedings have got to be taken all over again. In my judgment he was wrong. It is quite clear that where proceedings of this kind were started under the old procedure of the Transfer of Property Act they are to be continued under that Act although, meanwhile, the new Code of Civil Procedure has come into operation. There is a clear authority for the proposition in Bamasami Beddi V/s. Sakkappa Beddi 48 Ind. Cas. 732 : 35 M.L.J. 194 Further, it seems to me, even apart from that somewhat obvious ruling, it will be quite impossible at this stage to hold that an order which ex hypothesi was made accidentally in the form of making a decree absolute instead of in the form of making a decree final could be disregarded or set aside.

(2.) This appeal must be allowed with costs here and in the Court below, the District Munsif's order being restored. Waller, J.

(3.) I agree and I have nothing to add.