M PATTABIRAMA NAIDU DECEASED THROUGH HIS LEGAL REPRESENTATIVES T K A L BALU NAIDU, Vs. SUBRAMANIA CHETTI

JUDGEMENT

(1.) The question is whether this application under Order XXXIV, Rule 5(2) of the Code of Civil Procedure for a final decree in a mortgage suit is subject to Article 181 or Article 182, Schedule I of the Limitation Act.

(2.) We do not think it necessary to refer to any case before Mahammad Hussin v. Abdul Kareem 29 Ind. Cas. 237 : 39 M. 544 : 17 M.L.T. 424. It no doubt goes some way, if it is applicable, in support of appellants contention for Article 182.

(3.) But it is, in our opinion, inapplicable to the case before us, the preliminary-decree now in question having been passed after, whilst the decree then in question was passed before, the present Code of Civil Procedure came into operation. This distinotion is drawn in the judgment in Nimmala Mahankali v. Mahanakali v. Kallakuri Subba Rao 41 Ind. Cas. 268 : 32 M.L.J. 455, with which we express our respectful concurrence. We are further fortified in that concurrence by the fact that the judgment is in accordance with the decisions of two other High Courts, those of Bombay and Allahabad, and that it is not in conflict with those of the High Court of Calcutta. Datta Atmaram Hasabnis v. Shankar Dattatraya 21 Ind. Cas. 318 : 38 B. 32 : 15 Bom. L.R. 841; Madho Ham v. Nihal Singh 30 Ind. Cas. 494 : 38 A. 21 : 13 A.L.J. 985; Beni Singh v. Barhamdeo Singh 28 Ind. Cas. 211 : 19 C.W.N. 473 : 22 C.L.J. 66. We hold that Article 181 is applicable and dismiss the appeal against appellate order with costs.