VASUDEV VISHNU HASABNIS Vs. GOPAL PARASHRAM KULKARNI

JUDGEMENT

(1.) In this appeal in consequence of the difference of opinion between the learned Judges who heard the appeal the following question has been referred to me under Section 98 of the Code of Civil Procedure:-- Is the application or is it not time-barred under Article 181 of the Schedule to the Limitation Act, the application being regarded as one to extend time for the payment of the mortgage debt!

(2.) The few facts connected with this question are these : On the 17th of January 1907 the plaintiff obtained a decree in a redemption suit in these terms.--"The plaintiff do within six months from this day pay a sum of Rs. 391-13-0 and the defendant No. 1 s costs of the suit to the defendant No. 1 and recover possession of the property in suit, In the event of the plaintiff failing to pay the moneys as stated above, the defendant No. 1 may apply for obtaining relief under Section 15B of the Dekkhan Agriculturists Roliof Art....The defendant No. 1 do take in lieu of interest the income of the said land until the mortgaged property in suit is redeemed". Neither party took any steps to execute this decree which was passed under Section 15 B of the Dekkhan Agriculturists Relief Act. In 1915 the rights under the decree were assigned to the present respondent, who as representing the plaintiff made an application on the 27th of September 1915 requesting the Court to allow him to pay the money which the plaintiff was required to pay and to get possession of the property under the decree. The trial Court allowed this application. The lower appellate Court confirmed that order, and in the appeal here in consequence of the difference of opinion, to which I have adverted, the question stated above has been referred to me.

(3.) On a consideration of the arguments urged on either side and the reasons set forth in favour of either view in the differing judgments, I am of opinion that treating the application as one to extend time for the payment of mortgage debt it is barred under Article 181 of the Limitation Act. In 1907 when this decree was passed under the Dekkhan Agriculturists Relief Act, it was a decree capable of execution. It is not necessary for the purposes of this reference to express any opinion as to whether it was a decree which required to be made absolute by any further application either under the provisions of the Transfer of Property Act then in force, or after the Civil Procedure Code of 1908 came into force under the corresponding provisions of the Code.