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Datto Atmaram Hasabnis Vs. Shankar Dattatraya - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 648 of 1911
Judge
Reported inAIR1914Bom263(1); (1913)15BOMLR841
AppellantDatto Atmaram Hasabnis
RespondentShankar Dattatraya
DispositionAppeal dismissed
Excerpt:
.....1907. the same not having been paid, the plaintiff applied in september 1910 for a decree absolute for sale of the mortgage charge. the lower courts dismissed the application as barred under article 182 of the limitation act. on appeal :-;that the application being in form for a decree under order xxxiv of the civil procedure code, fell within the scope of article 181 of the limitation act, 1908 ; and that it, not having been made within three years from the time when the right to apply accrued, was barred tinder the article: - - but although we cannot accept the reasons of the lower courts, we think that the application must fail......turned upon whether the execution proceedings had been initiated under the right section of the civil procedure code.2. that question does not arise in the present case. but although we cannot accept the reasons of the lower courts, we think that the application must fail. the reason is that this is an application in form for a decree under order xxxiv of the civil procedure code, and it is contended on behalf of the appellant that it must be treated as under order xxxiv, and no other order. that being so, it is an application under the civil procedure code, and as such falls within the scope of article 181 of the limitation act: see amlook chand parrack v. sarat chunder mukerjee i.l.r (1911) cal. 913. the application under article 181 must be made within three years from the time.....
Judgment:

Basil Scott, Kt., C.J.

1. The application in this case is for a decree absolute for sale of a mortgage charge, the property of the defendant, under the terms of a consent-decree. The consent-decree provided for satisfaction of the decretal debt by installments. Three years from the due date of the last instalment becoming payable expired in July 1910. The application which we are now considering was made subsequent to that date. The question is whether it was barred by limitation? The lower Courts have held that the debt due to the plaintiff was moveable property, and that, therefore, there was no need for an application for a decree absolute. They based the decision upon Tarvadi Bholanath v. Bai Kashi I.L.R (1901) Bom. 316 : 4 Bom. L.R. 18. The question there turned upon whether the execution proceedings had been initiated under the right section of the Civil Procedure Code.

2. That question does not arise in the present case. But although we cannot accept the reasons of the lower Courts, we think that the application must fail. The reason is that this is an application in form for a decree under Order XXXIV of the Civil Procedure Code, and it is contended on behalf of the appellant that it must be treated as under Order XXXIV, and no other order. That being so, it is an application under the Civil Procedure Code, and as such falls within the scope of Article 181 of the Limitation Act: see Amlook Chand Parrack v. Sarat Chunder Mukerjee I.L.R (1911) Cal. 913. The application under Article 181 must be made within three years from the time when the right to apply accrues. It has not been made within that period, and is, therefore, barred. We, therefore, dismiss the appeal with costs.


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