MAHAMMAD HUSAIN SAIB Vs. ABDUL KAREEM SAIB

JUDGEMENT

(1.) This appeal raises an important question of limitation. A preliminary decree in a mortgage suit was passed on the 7th October 1901. On the 6th April 1904, the first application was presented to obtain the order absolute. This apparently was filed as an application for the execution of the preliminary decree. Subsequent applications were made in 1907, 1910 and 1912, all within three years of the immediately preceding application. Notices were sent in most of the applications. They were all dismissed without granting the relief prayed for. The present application is dated the 15th April 1912. It was objected to in the Court of first instance that as more than three years had elapsed from the date of the preliminary decree, the application was barred. The District Munsif held that there was no bar of limitation for such applications. On appeal the District Judge held that the present application must be treated as one in execution of the decree and that Article 181 of the Limitation Act applied to it.

(2.) Mr. S. Doraiswami Iyer has cited before us a large number of authorities to show that the preliminary decree is not executable and that Article 180 applies to the application. There have been conflicting decisions regarding the executability of the preliminary decree. Different High Courts have taken different views. We wish to confine ourselves to a consideration of the decisions of this Court and of the Judicial Committee of the Privy Council.

(3.) In Malikarjunadu Setti v. Lingamurti Pantulu 25 M. 244 : 12 M.L.J. 279 the majority of the Full Bench came to the conclusion that the preliminary decree in a mortgage suit was executable, and that the process for obtaining the order absolute was by way of execution. In arriving at this result the learned Judges were largely influenced by the language of Sections 88 and 89 of the Transfer of Property Act. The first Section speaks of the preliminary decree and the second Section of applying for an order absolute. Even after the pronouncement in the Full Bench case, doubts arose regarding the applicability of Article 179 of the Limitation Act (Act XV of 1877). As was pointed out by Mr. M.C. Parthasarathy Iyengar, the learned Counsel for the respondent, the import of the Full Bench ruling was explained in Rungialk Goundan Co. v. Nanjappa Row 26 M. 780 : 13 M.L.J. 412. It was suggested in that case that ordinarily an application for an order absolute will be one to which Article 179 would apply. In certain cases Article 178 may also apply. This view was acted on in this Presidency for a long time until the decision of the Judicial Committee was reported in Haji Ashfaq Husain v. Lal Gauri Sahai 9 Ind. Cas. 975 : 33 A. 264 : 15 C.W.N. 370 (P.C.) : 8 A.L.J. 332 : 9 M.L.T. 380 : 13 C.L.J. 351 : 13 Bom. L.R. 367 : 4 Bur. L.T. 121 : 21 M.L.J. 1140. That decision, as we shall show presently, does not affect the conclusion stated in Rungiah Goundan and Co. v. Nanjappa Row 26 M. 780 : 13 M.L.J. 412. All that was laid down in Haji Ashfaq Husain v. Gaitri Sahai 9 Ind. Cas. 975 : 33 A. 264 : 15 C.W.N. 370 (P.C.) : 8 A.L.J. 332 : 9 M.L.T. 380 : 13 C.L.J. 351 : 13 Bom. L.R. 367 : 4 Bur. L.T. 121 : 21 M.L.J. 1140 was that time began to run against the decree- holder after the passing of the final decree, that is, "from the date when it was made absolute." It did not say that the preliminary decree was not executable. But it was so understood in some of the cases decided in Madras. It is not necessary to refer to all the decisions. They are all mentioned in Epoor Ramasamy Reddy v. Kandadai Rangamannar Iyengar 23 Ind. Cas. 390 : 26 M.L.J. 255 : 15 M.L.T. 246 : (1914) M.W.N. 622. In that case Sankaran Nair and Ayling, JJ., without expressing their opinion regarding the correctness of the decisions they quoted, held that the judgment-debtor was barred by res judicata from raising the plea that the preliminary decree was not executable. All these decisions were passed before the Judicial Committee s decision in Abdul Majul v. Jawdhir Lal 23 Ind. Cas. 649 : 36 A. 350 : 12 A.L.J. 624 : 16 Bom. L.B. 395 : 18 C.W.N. 963 : 19 C.L.J. 626 : 27 M.L.J. 17: (1914) M.W.N. 485 : 16 M.L.T. 44 : 1 L.W. 483 was published. That case lays down distinctly that the Article applicable to an application for obtaining an order absolute is 179. of the Limitation Act.