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.
4. Whether it was a decree nisi which required to be made absolute or not, it was a decree capable of execution : and any application to execute it would be governed by Article 182. If the application of the 27th September 1915 be treated as an application not merely for the extension of time for the payment of the mortgage debt but for the recovery of possession of the property, as in terms it purports to be, it is an application for the execution of the decree and as such it is time-barred under Article 182. But treating it as an application for the enlargement of time only, as stated in the question formulated for decision, I do not see how it can be held that there is no period of limitation applicable to it. Article 181 refers to applications for which no period of limitation is provided elsewhere in the first schedule of the Limitation Act or by Section 48 of the Code of Civil Procedure. An application for the extension of time for the payment of the mortgage debt under a redemption decree, if not treated as an application for the execution of the decree would clearly fall under Article 181. It is an application for the exercise of powers referred to in the Code, and there is no other period of limitation prescribed for such an application on the assumption that it is not an application for the execution of the decree. The application would be time-barred, if it were not made within three years from the date on which the right to apply accrued. In the present case the right to apply for the extension of time accrued on the date of the decree or at the latest on the expiry of the period of six months fixed for the payment of the debt under the decree.
5. It is urged that the right to apply for the extension of time accrues from day to day so long as the right to redeem subsists, and that in effect there is no period of limitation applicable to an application for the extension of time. It is further urged that such an application is really an application for a modification and not for the execution of the decree. These contentions have been accepted by my brother Pratt. With great deference, I am unable to accept them.
6. As regards the first contention I do not think that the right to apply can be treated as a right accruing from day to day. The Court has the power to enlarge the time fixed under the decree for the payment of the mortgage debt; but it has no power to enlarge the time prescribed by the Limitation Act. By treating the right to apply for the extension of time as a right accruing from day to day, the Court would in effect be allowing the plaintiff to do that indirectly, which he could not do directly. That is though his application for execution is time-barred, he could get over it by applying merely for extension of time long after the execution is time-barred. In effect the argument involves the result that there is practically no period of limitation governing the execution of an executable decree, so long as the right to redeem is not extinguished. I am of opinion that an argument involving such a result ought to be negatived.
7. As to the second contention that the application is not to execute but to modify the decree, I doubt whether it has any practical importance in this case, as the question for decision apparently proceeds on the assumption that it is not an application for execution of the decree. If it were an application for execution it would be clearly barred under Article 182. But apart from this consideration, it seems to me to be in substance a part of the execution proceedings. The plaintiff cannot recover possession under the decree without paying the amount within the time fixed by the decree or within such further time as the Court may allow under the provisions of the Code; and an application to extend the time is really an application to take a necessary preliminary step by way of execution when the payment is not made within the time fixed by the decree. For the purposes of limitation it may not be governed by Article 182 ; that question does not directly arise in this case. But it would be and ought to be governed by Article 181. It seems to me that the provisions of the Limitation Act as well as the provisions of the Code relating to mortgage decrees can be given due effect without leading to any anomalous result by holding that an application to extend time is governed by Article 181.
8. It will appear from the observations in Amlook Chand Parrack v. Sarat Chunder Mukerjee I.L.R (191) Cal. 913 and the decision in Datto Atmaram v. Shanker Dattairaya I.L.R. (1913) 38 Bom. 32 that an application for a decree absolute under Order XXXIV is governed by Article 181. The contention that there is no period of limitation for an application by the mortgagor to extend time for the payment of the mortgage debt does not appear to me to be reconcilable with the view taken in the said cases.
9. It is needless to refer to other cases cited at the bar. I may mention that there is nothing, in my opinion, in Nandram v. Babaji I.L.R. (1897) 22 Bom. 771 and Ishwar Lingo v. Gopal Jivaji I.L.R. (1903) 28 Bom. 102, which can be construed as being in conflict with my conclusion. The point, that I have to decide, did not arise in these cases.
10. I, therefore, agree with my brother Heaton that the application is time-barred.
11. As to the final order to be made, it appears that both the learned Judges agree, as stated in the judgment of Heaton J., that if the application is time-barrod the matter should be remanded so that the Court below may consider whether the application should be treated as a suit under Section 47, Clause (2), of the Civil Procedure Code. The parties have raised no objection to the proposed order : and there has been no argument before me on the point. Under the circumstances that must be the final order. I express no opinion as to the propriety of such an order. I desire to make it clear that I express no opinion as to whether under the circumstances a second suit for redemption can lie.
12. The result is that the orders of the lower Courts are set aside and the matter is remanded so that the Court below may consider whether the application should be treated as a' suit under Section 47, Clause (2), of the Civil Procedure Code.
13. The plaintiff should pay the costs throughout up to date.