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Harjivan Devraj Vs. Gajanan Kashinath Naik - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 461 of 1922
Judge
Reported inAIR1923Bom420; (1923)25BOMLR459; 73Ind.Cas.187
AppellantHarjivan Devraj
RespondentGajanan Kashinath Naik
DispositionAppeal dismissed
Excerpt:
.....1908), order xxxiv, rule 4 - indian limitation act (ix of 1908), article 181-mortgage-preliminary decree-application to make the decree final-limitation. ;where a preliminary decree is passed on a mortgage under order xxxiv, rule 4, of the civil procedure code 1908, the application to make the decree final must, under article 181 of the indian limitation act, be presented within three years and six months from its date. ;until the rules in order xxxiv of the civil procedure code 1908 and the corresponding forms in the schedule are re-cast, it is desirable that the court when drawing up preliminary decrees under rules 2, 4 and 7 should add the following heading : ' preliminary decree which requires to be made final within the prescribed period of limitation before it can be exeouted.' -..........with the provisions of sections 86 and 88 of act iv of 1882 had been regarded by some courts as final decrees and by some courts as preliminary decrees, with the result that there was a conflict of decisions on the question whether any further proceedings should be treated as in execution or as applications to make tea decree final. that conflict was set at rest by the alteration made in section 89 when it became order xxxiv, rule 5, whereby it was directed that the courts should pass a final decree, the terms of which would depend upon whether the mortgage amount had been paid or whether there had been default. unfortunately sections 86, 88 and 92 were not consequentially amended when inserted in the civil procedure code as order xxxiv rules 2, 4 and 7, with the result that not only.....
Judgment:

Norman Macleod, Kt., C.J.

1. On June 29, J911, the plaintiffs obtained a decree in the Court of the First Class Subordinate Judge at Thana on a simple mortgage. The decree directed as follows:

The defendant do pay to the plaintiffs Rs. 693 and costs within six months from this date or do pay the same into Court. In default, the plaintiffs do get the mortgaged property or a sufficient portion thereof sold and do recover their amount.

2. That was a decree under Order XXXIV, Rule 4, Civil Prcedure Code, which corresponded to Section 88 of the Transfer of Property Act as it stood prior to the passing of the Civil Procedure Code. Sections 85 to 90, 92 to 94, 96, 97, 99 and part of 100 of the Transfer of Property Act IV 1882 were repealed, and re-enacted in the Civil Procedure Code in Order XXXIV, with certain variations. Decrees passed in accordance with the provisions of Sections 86 and 88 of Act IV of 1882 had been regarded by some Courts as final decrees and by some Courts as preliminary decrees, with the result that there was a conflict of decisions on the question whether any further proceedings should be treated as in execution or as applications to make tea decree final. That conflict was set at rest by the alteration made in Section 89 when it became Order XXXIV, Rule 5, whereby it was directed that the Courts should pass a final decree, the terms of which would depend upon whether the mortgage amount had been paid or whether there had been default. Unfortunately Sections 86, 88 and 92 were not consequentially amended when inserted in the Civil Procedure Code as Order XXXIV Rules 2, 4 and 7, with the result that not only those rules but also the forms 3, 4 and 5 of preliminary decrees appearing in Appendix D are misleading. An ordinary layman and even a lawyer might well think that all that is necessary after a decree has been obtained under one of those rules and drawn up in accordance with the relative form, is to apply to the Court in execution to get the mortgaged property sold, purchased or redeemed. In this case the plaintiff, on December 7, 1918, took out a Darkhast to make the decree final which was not prosecuted. We do not think, although it was called Darkhast, that the Court would be entitled to look upon it on that account as a proceeding in execution, considering that the application really was to make the decree final. A similar Darkhast was issued on April 24, 1915, which was also dismissed for want of prosecution.

3. Now the time allowed for applying to the Court for making a decree final is three years from the time when the right to apply accrues under Article 181, First Schedule, of the Indian Limitation Act. So that after three years and six months from June 29, 1911, the plaintiffs were time-barred from asking the Court to make the decree final.

4. On April 25, 1913 an application was made to make the decree final and that was rejected as being out of time. The plaintiffs have appealed from the rejection of their application. Since it is clear under the provisions of the Code that there has been only a preliminary decree, which must be made final before it can be executed, all the previous applications were futile to prevent the present application being time-barred. The decision of the learned Judge in the Court below dismissing the application was right, and the appeal, therefore, must be dismissed.

5. It might be desirable, until the rules in Order XXXIV and the corresponding forms are re-cast, that the Courts, when drawing up preliminary decrees under Rules 2, 4 and 7, should add the following heading: 'Preliminary decree, which requires to be made final within the prescribed period of limitation before it can be executed.'


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