A C GANAPATHIYA PILLAI Vs. GOPALA AIYER

JUDGEMENT

(1.) The decree-holders are the appellants. Their application was under Section 89 of Act IV of 1882 for an order absolute. The application was made in 1914 within three years of a previous application of December 1911 for the same relief, the right to obtain that relief under the decree of December 190S having accrued in Marsh 1909. That application was dismissed by the Munsif on the ground?: (a) that Article 181 (old Article 178) applied to the application for an order absolute under the ruling in Rungiah Goundan & Co. v. Nantappa Row 26 M. 780 : 13 M.L.J. 412; 23 Ind. Cas. 649 : 36 A. 350 : 12 A.L.J. 624 : 16 Bom. L.R. 395 : 18 C.W.N. 963 : 19 C.L.J. 626 : 27 M.L.J. 17 : (1914) M.W.N. 485 : 16 M.L.L. 44 : 1 L.W. 483 (P.C.) that, therefore, it was barred as made after three years from March 1909; (b) that the decree-holders had no right to apply for an order absolute but could apply only for the passing of a final decree according to the provisions of the new Civil Procedure Code. (c) The District Judge confirmed the order of the District Munsif on only the ground (c), namely, that the decree holder had no right to apply for an order absolute but only for a final decree and such an application was barred under Article 181.

(2.) Following the reasoning of the decision in Balaji Rao v. Harirama chetty 32 Ind. Cas. 39, which. approves of the decision in Mahommad Husain v. Abdul kareem 29 Ind. Cas. 237 : 39 M. 544 : 17 M.L.T. 424, I would hold that the decree passed in December 1908 under Section 88 of Act IV of 1882 gave a vested right to the decree-holder to obtain an order absolute in execution proceedings and that he could, therefore, apply under Section 89 of Act IV of 1882 for such an order.

(3.) Though sections 86 and 89 of the Transfer of Property Act had bean repealed before the time allowed to the judgment-debtor for making the payment (March 1909), the vested right of the decree holder to apply in execution for an order absolute on the expiry of the time granted to the judgment-debtor for payment cannot be taken away by the said repeal [see Section 6 of Clauses (c) and (e) of the General Clauses Act]. If his right to apply under Section 89 is held to have been taken away by the new Code, he cannot also obtain a final decree under Order XXXIV, rule 5, as a final decree presupposes a preliminary decree under Order XXXIV, rule 4, and the decree of December 1S08 was not a preliminary decree (see Malikarjunadu Setti v. Lingamurthi Pantulu 25 M. 244 : 12 M.L.J. 279].