AIYASAMIER (DEAD) Vs. VENKATACHELA MUDALI

JUDGEMENT

(1.) The answer to the question referred to the Full Bench should be that the period of limitation under Section 48 of the Code of Civil Procedure runs from the date when, after the remedy against the mortgaged property has been exhausted, it is ascertained that there is a balance due to be recovered from the defendant and his other properties. The decree in this ease was passed before the present Code of Civil Procedure came into operation and under the provisions of the Transfer of Properly Act. Properly speaking, there should have been first a decree for sale of the mortgaged properties and if the mortgaged properties were found insufficient, a separate decree or order should then have been made for realisation of the balance from the person and other properties of the judgment-debtor. But there was a very prevalent practice in the mofussil courts to draw up one decree providing for the sale of the mortgaged property and if the sale-proceeds were insufficient to satisfy the decree, for recovery of the balance from the other properties of the mortgagor. A. combined decree like this, though irregular, has been held to be within the competency of the Court and binding on the parties, see Dinabandhu v. Mashuda (1913) 26 M.L.J. 88. It has further been ruled that in such cases, it is not necessary to obtain another separate decree or order under Section 90 of the Transfer of Property Act, see Periasami Kone v. Muthia Chettiar (l914) 16 M.L.T. 899.

(2.) That was the state of law, when Section 48 of the Code of Civil Procedure which now provides the limit of time for execution was enacted. It is in these words: Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from--(a) the date of the decree sought to be executed, or (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the applicant seeks to execute the decree. " I am not prepared to hold that Clause (b) applies to decrees like the one under consideration, for they cannot be said to direct payment or delivery of property at a " certain " date. For that clause to apply, the date should be fixed in the decree or at least should be ascertainable from its terms. We have not been referred to any authority for applying the maxim " whatever can be made certain is to be treated as certain " to the construction of a statute of limitation and I am not aware of any. I think however the case falls under Clause (a). There is no good reason for holding that the date of the decree sought to be executed must necessarily be the date put down at the time it was drawn up. The legislature by using the qualifying words " sought to be executed" seem to me to have indicated that the date is to be ascertained with reference to the time when the decree becomes capable of execution. Otherwise, there are cases in which, if time were to be reckoned from the date when the judgment is pronounced, which, as provided in the Code of Civil Procedure (Order 20, Rule 7), is the date which the decree must bear, the result would be that the decreeholder would not be able to execute the decree at all; for instance, where a decree directs something to be done upon a certain contingency, such as in the case mentioned by Sadasiva Aiyar, J., where a decree for partition provides for an amount to be spent for the marriage of a girl belonging to a Hindu family in the event of and when the marriage takes place. A decree may give more than one relief, some of them may be enforceable at once and some can only be enforced at future dates either fixed in the decree or depending on the happening of a particular event. A decree is defined as the formal expression of an adjudicatioi which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit . When the reliefs given in respect of those rights are distinct and enforceable at different periods of time, then for purposes of execution, there are in fact more than one decree though embodied in one document. In such cases, it is only reasonable to hold that the date of the decree sought to be executed within the meaning of Section 48 Clause (a) of the Code of Civil Procedure may not be what it bears on its face. It is the date when the particular adjudication sought to be enforced becomes ripe for execution according to the terms of the decree.

(3.) This is the view of the law adopted in Ratnachalam Ayyar v. Venkatrama Ayyar (1912) I.L. R 36 B. 868 and in Narhar Raghunath v. Krishnaji Govind (1912) I.L.R. 36 B. 868. In Vydianatha Aiyar v. Subramania Patter (1907) I.L.R. 30 M. 461, the learned Judges seem to have gone even further, holding that in cases of this class, time begins to run for the whole of the decree only from the time of the ascertainment of the amount left undetermined. But I do not wish to express any decided opinion as to whether this is correct. The opposite view was expressed in Jnanendranath Bose v. Khulna Loan Company Limited (1908) 18 M.L.J. 518 and by this Court in Venkata Perumal v. Prayag Dassji (1914) 29 I.C. 556 where it was held that time must be calculated from the date which the decree bears on the face of it and it makes no difference whether that part of the decree which is sought to be executed did not become capable of being enforced until afterwards. For the reason which I have given, I am of opinion that the ruling in Ratnachalam Ayyar v. Venkatarama Ayyar (1912) I.L.R. 36 B. 868 and Narhar Raghunath v. Krishndji Govind (1914) 29 I.C. 556 is correct and the case reported in Venkata Perumal v. Prayag Dassji (1911) 16 M.L. T 99 so far as this point is concerned must be overruled.