SHIBA DURGA DEBI Vs. GOPI MOHAN SHAHA

JUDGEMENT

(1.) This is an appeal from the order of the learned District Judge, dated the 11th February 1915, by which he dismissed an appeal from the order of the learned Subordinate Judge, dated the 17th June 1914. The matter arises out of a proceeding taken in execution of a decree upon a mortgage and the point involved is one of limitation.

(2.) It appears that on the 10th March 1896, a decree was made by consent providing for the payment of the amount due by the judgment-debtor in instalments. The condition was annexed that if default were made in the payment of two consecutive instalments, the decree- holder (the respondent before us) should be at liberty "to realise the entire amount due on account of all the kists past and future by serving proclamation of sale and by selling at auction the mortgaged properties mentioned in the present decree." Then there is this provision: "And if the plaintiff s dues are not fully satisfied by the price fetched by the sale, the plaintiff shall be entitled to realise the balance by a proceeding against the defendant s other moveable and immoveable properties left by the deceased debtor Golak Chandra Mahanty. The properties mentioned in the plaint remain fully mortgaged and liable for the decretal amount." For the translation of the concluding portion of the decree from which we have quoted, we are indebted to the learned Pleader for the appellant. Neither the decree itself in its entirety nor the decree absolute to which we are about to refer has been placed before us. Apparently the judgment-debtor failed to pay any of the instalments as they fell due. The first default occurred at the end of the year 1896, and the next following default was in April 1897. On the 24th March 1900 the decree-holders obtained the decree absolute and subsequently thereto they brought the mortgaged properties to sale in the ordinary course of execution. The last sale took place, as we are informed, in the year 1906. Then, in March 1912, within twelve years of the decree absolute, the decree-holder applied for the sale of the properties of the judgment-debtor other than those covered by the mortgage; in other words, he sought to enforce the personal remedy for which provision had been made in the decree of the 10th March 1896. The judgment-debtor filed an objection to this application on the ground that it was barred by limitation under Section 48 of the Code of Civil Procedure, 1908. The Courts below have decided the question in the decree-holder s favour and the judgment-debtor has appealed.

(3.) The arguments urged on the appellant s behalf by the learned Pleader are to the following effect. As to Clause (a) of Sub-section (1) of Section 48, Civil Procedure Code, it is said that if limitation is to be computed from the date of the decree sought to be executed, the decree to which we ought to look for this purpose is the decree of the 10th March 1896 and not the decree absolute of the 24th March 1900. As to Clause (6) of Sub-section (1) of Section 48, the contention is that the limitation should run, at the latest, from the time when default was made in paying two consecutive instalments, i.e., from April 1897. If these contentions are correct, the decree-holder s application is barred whichever of the two clauses is applied. In the view we take, however, Clause (6) need not be considered. It has no application to the present case, because the decree-holder is not seeking to enforce his remedy in respect of the default in paying the instalments but in respect of the fact that the proceeds of the sales of the mortgaged properties were not sufficient to meet his claim.