SASHI BHUSAN DAS Vs. PRATUR CHANDRA ROY

JUDGEMENT

(1.) This is an appeal from an order of the learned District Judge of Chittagong, dated the 12th August 1915, affirming the order of the Munsif of North Rouzan, dated the 8th April of the same year. The application out of which the present appeal arises was an application for a decree absolute in a suit for foreclosure. The first decree was made by-consent on the 28th December 1909. The date for payment under the terms of that decree was February 1910 and it was provided that, unless payment was made before that date, the mortgagor would be debarred from the right to redeem the property. Subsequent to that, on the 13th January 1912, an application was made for substitution and execution of the decree. That application was dismissed as no affidavit of service was filed in Court. The present application was made on the 7th April 1915. As already stated, the application was made for a final decree in a suit for foreclosure. That is how the parties treated the matter and that is how the matter came before the Court. The learned Judges in both the lower Courts held that the application was barred under the provisions of Article 181 of the Indian Limitation Act. Against that decision the present appeal has been preferred.

(2.) The only point that has been argued in this appeal is that there was no preliminary decree for foreclosure but that the parties by consent agreed to a final decree for foreclosure, and that this is an application for execution coming under the provisions of Article 182 of the Indian Limitation Act. To that view, I am unable to assent. The decree that was drawn, namely, unless payment was made before February 1910 the mortgagor would be debarred from his right to redeem the property, was in the common form of a preliminary decree for foreclosure; and subsequent to that, as is always done, there should be a final decree for foreclosure where it is made to appear to the Court that default has taken place in the payment of the decretal amount within the time limited by the preliminary decree. The decree in this case is clearly a preliminary decree to be followed under the provisions of the law, as it stands under the present Code, by a final decree for foreclosure. That being so, that final decree for foreclosure would have to be applied for under the provisions of the Civil Procedure Code and, under Article 181 of the Indian Limitation Act, an application for such a decree must be made with the period of three years from the time when the right to apply accrues. The learned District Judge, following the observations made by Sir Lawrence Jenkins in the course of his judgment in the case of Amolak Chand Parak v. Sharat Chandra Mukherjee 11 Ind. Cas. 943 : 16 C.W.N. 49 : 38 C. 913., came to the conclusion that this was an application for a final decree and not an application in execution. In that view I agree. The present appeal, therefore, fails and must be dismissed. As nobody appears for the respondent, we make no order as to costs. Richardson, J.

(3.) I agree.