AHMED KHAN Vs. MUSAMMAT GAURA

JUDGEMENT

(1.) This appeal arises out of an application for a final decree in a mortgage suit. The preliminary decree was passed on the 27th of August 1908 and six months were allowed to the defendant to pay the mortgage money. It is stated in the petition filed by the decree holder that no payment was made. He made an application on the 26th of August 1911 for a final decree under Order XXXIV, Rule 5. That application was dismissed for default on the 9th of April 1912. On the 10th of September 1912 the present application was made for a final decree. It was opposed on two grounds, first, that the order dismissing the previous, application was a bar to the present application and secondly, that the application was time- barred. The Court of first instance allowed the first objection and did not decide the second. It dismissed the application now made. Upon appeal the lower Appellate Court disagreed with the Court of first instance and remanded the ease for proceeding with the application.

(2.) So far as the first point is concerned the defendant s objection was without force, because the first application having been dismissed for default of appearance of both parties a fresh application could be made; but this second application ought to have been made within the period prescribed by the law of limitation. It is clear that the application was beyond time. The period of limitation which governs a case of this kind is three years, under Article 181 of the First Schedule to the Limitation Act, from the date on which the right to apply accrued, that is, from the expiration of the time allowed by the decree for payment of the mortgage money. In the present cafe the six months expired on the 27th of February 1909 and as the present application was made on the 10th of September 1912, it was clearly beyond time. The Court below seems to have overlooked the fact that in the present Code of Civil Procedure a final decree in a mortgage suit is a decree in the suit itself and an application for a final decree cannot be deemed to be an application in execution. The second application cannot be regarded as a revival of an application which was disposed of. In this view the present application was clearly beyond time and ought to have been dismissed.

(3.) We accordingly allow the appeal, set aside the order of the Court below and restore the order of the Court of first Instance with costs in all Courts.