HARJIVAN DEVRAJ Vs. GAJANAN KASHINATH NAIK

JUDGEMENT

(1.) On June 29, J911, the plaintiffs obtained a decree in the Court of the First Class Subordinate Judge at Thana on a simple mortgage. The decree directed as follows: The defendant do pay to the plaintiffs Rs. 693 and costs within six months from this date or do pay the same into Court. In default, the plaintiffs do get the mortgaged property or a sufficient portion thereof sold and do recover their amount.

(2.) That was a decree under Order XXXIV, Rule 4, Civil Prcedure Code, which corresponded to Section 88 of the Transfer of Property Act as it stood prior to the passing of the Civil Procedure Code. Secs.85 to 90, 92 to 94, 96, 97, 99 and part of 100 of the Transfer of Property Act IV 1882 were repealed, and re-enacted in the Civil Procedure Code in Order XXXIV, with certain variations. Decrees passed in accordance with the provisions of Secs.86 and 88 of Act IV of 1882 had been regarded by some Courts as final decrees and by some Courts as preliminary decrees, with the result that there was a conflict of decisions on the question whether any further proceedings should be treated as in execution or as applications to make tea decree final. That conflict was set at rest by the alteration made in Section 89 when it became Order XXXIV, Rule 5, whereby it was directed that the Courts should pass a final decree, the terms of which would depend upon whether the mortgage amount had been paid or whether there had been default. Unfortunately Secs.86, 88 and 92 were not consequentially amended when inserted in the Civil Procedure Code as Order XXXIV Rules 2, 4 and 7, with the result that not only those rules but also the forms 3, 4 and 5 of preliminary decrees appearing in Appendix D are misleading. An ordinary layman and even a lawyer might well think that all that is necessary after a decree has been obtained under one of those rules and drawn up in accordance with the relative form, is to apply to the Court in execution to get the mortgaged property sold, purchased or redeemed. In this case the plaintiff, on December 7, 1918, took out a Darkhast to make the decree final which was not prosecuted. We do not think, although it was called Darkhast, that the Court would be entitled to look upon it on that account as a proceeding in execution, considering that the application really was to make the decree final. A similar Darkhast was issued on April 24, 1915, which was also dismissed for want of prosecution.

(3.) Now the time allowed for applying to the Court for making a decree final is three years from the time when the right to apply accrues under Art. 181, First Schedule, of the Indian Limitation Act. So that after three years and six months from June 29, 1911, the plaintiffs were time-barred from asking the Court to make the decree final.