Subba Rao, C.J .
(1) The question raised in this Civil Miscellaneous Appeal is what is the starting point of limitation for executing a personal decree made in a suit on a mortgage.
(2) The appellant executed a mortgage deed for himself and as guardian of his minor son in favour of respondents 2 and 3 for a sum of Rs. 4,500/-. The mortgages filed O. S. No. 59 of 1935 in the Court of the Subordinate Judge, Kakinada on the foot of that mortgage and obtained a preliminary mortgage decree on 9.3.1936. A final decree followed on 17.9.1937. After the mortgaged properties were exhausted the decree-holders filed I. A. No. 549 of 1944, for a personal decree and obtained the same on 29.9.1944. Thereafter, they transferred the decree in favour of the 1st repondent.
On 20.11.1951, the transferee-decree-holder filed E. P. No. 481 of 1951 for executing the said personal decree. That application was filed more than 12 years from the date of the final decree but within 12 years from the date of the personal decree. The judgment-debtor, inter alia, contended that the application, having been filed more than 12 years from the date of the final decree was barred by limitation. The learned Subordinate Judge rejected the contention and directed execution to proceed. The Judgment-debtor preferred the above appeal.
(3) Learned counsel contends that an application to execute a personal decree will be barred under Sec. 48, C. P. C., if it is filed more than 12 years from the date of the final decree. The relevant provisions governing the period of limitationmay now be read.
Section 48 : '(1) Where an application to execute a decree not being a decree granting an injunction has been made no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from
(a) The date of the decree sought to be executed ...............................
(2) Nothing in this section shall be deemed
(b) to limit or otherwise affect the operation of Art. 183 of the First Schedule to the Indian Limitation Act. 1908'.
The provisions of this section are clear and unambiguous. The starting point for computting the period of 12 years is the date of the decree. If a personal decree is a 'decree' within the meaning of S. 48 (1) (a), an execution application filed within 12 years from the date of that decree would not be barred under the express terms of that section. Section 2(2), Civil P. C. defines a decree to mean the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.
To come under that definition, there shall he an adjudication which conclusively determines the rights of the parties. The scope of any enquiry, which culminates in the passing of an preliminary-decree, is governed by the provisions of O. 34, R. 6, C. P. C. Order 34, R. 6 says :
'Where the net proceeds of any sale held under the last preceding rule are found insufficient to pay the amount due to the plaintiff, the court on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance'.
(4) Under that rule, before a court passes a personal decree, it must adjudicate upon the rights of the parties in respect of the following matters, (i) what is the amount still payable to the decree holder after the hypothecated properties are sold and the sale proceeds are credited towards the decree, and (ii) whether the said amount is legally recoverable from the defendant. The first question is one of fact and the second is one of law. The court is called upon to decide the said question. If there is no balance still outstanding or if the application for a personal decree is barred or otherwise not maintainable, it dismisses the application.
If there is balance outstanding and the application is legally maintainable, it passes a personal decree. It is, therefore, manifest that under Or. 34, R. 6, C. P. C., the court conclusively determines the rights of the parties in regard to the matters in controversy. An order dismissing an application for a personal decree in a mortgage suit has been held to be a 'decree' within the meaning of the definition under Section 2(2), C. P. C. See 'Subnbalakshmi Ammal v. Rama Linga Chetty' AIR 1919 Mad 709 (A). If so, it cannot be contended that when a court passes a personal decree. it is not a 'decree' within the meaning of the said definition.
(5) In -- 'Ajayasamier v. Venkatachala Mudali', AIR 1918 Mad 1187 (B) a Full Bench of the Madras High Court held that where a mortgage decree provides for recovery of any balance from the other properties of the mortgagor in case the sale proceeds of the mortgaged properties are found insufficient to satisfy the entire decree amount, the decree-holder has, under Section 48, C. P. C., 12 years for the recovery of such balance reckoned from the time when it is ascertained to be due. In that case, no separate personal decree was passed but the mortgage decree itself provided for the recovery of the balance from the other properties of the mortgagor if the sale proceeds of the mortgaged properties were insufficient to pay off the decree debt.
The learned Judge construed that decree as embodying two decrees and held that the period of 12 years should be rekoned from the date when the sale proceeds were found to be insuficient. At page 1191, Abdur Rahim, Offig. C. J., gave the reason for his conclusion as follows :
'When the reliefs given in respect of those rights are distinct and enforceable at different periods of time, then for purposes of execution, there is in fact, more than one decree though embodied in one document'.
Though this decision in so far as it held that a mortgage decree could be split up into two separate decrees for the purpose of computing the period of limitation is no longer good law in view of the later decision of the Judicial Committee, the principle accepted by this decision viz., that, in the case of a personal decree, the period should be computed from the date of the decree, has not been overruled.
(6) Phillips J., to whom the question,
'where a decree directs that money be recoverable from a party only on failure to recover from another party, does the execution of the decree become barred against the former after 12 years from the date of the decree as provided by Section 48, C. P. Code ?'
was referred on a difference of opinion between Devadoss and Wallace JJ., brings out the distinction between such a decree and a separate personal decree in -- 'Nawab Shuja Ul - Mulk v. Umir - Ul - Umra Bahadur' AIR 1926 Mad 20 (C). The learned Judge held, relying upon the decision of the Judicial Committee in -- 'Khulna Loan Co. v. Jnanendra Nath', AIR 1917 PC 85 (D), and differing from that of the Full Bench in -- 'AIR 1918 Mad 1187 (B)' that an application filed after 12 years from the date of the decree was barred by limitation. At page 28 he made the following observations :
'Therefore in a mortgage decree and other decrees like the present, it may well be open to the court to pass a subsequent order declaring that the second portion of the decree had become executable and directing execution to proceed, and such an order would come within the meaning of the subsequent order referred to in Section 48(1)(b)'.
These observations imply that Phillips J., recognised that, if a separate personal decree was made, that would give a starting point for executing that decree.
(7) So too, another Division Bench of the Madras High Court in -- 'Swaminatha Odayar v. Thaiagarajaswamy Odayar', AIR 1926 Mad 954 (E) brought out the distinction between a combined decree and a separate personal decree vis-a-vis the application of the provisions of Section 48, C. P. C. After holding that, in the case of a combined decree, the 12 years period shouldbe computed from the date of that decree, the learned Judges made the following pertinent remarks at page 955 :
'If an order was passed after the property had been sold that, for the balance, other properties of the mortgagors should be proceeded against, the present application would be in time, but no such order was passed and therefore the application is barred by S. 48 of the Civil Procedure Code'.
(8) A Division Bench of the Patna High Court in -- 'Nagendra Pratap v. Joharmal', : AIR1950Pat491 (F) had considered the question now raised in some detail. There, after the mortgaged properties had been sold under Or. 34, R. 5, a decree was passed according to terms of O. 34 R. 6 directing that, for the realisation of the balance the decree-holder could proceed against the personal and other properties of the defendant. It was contended before the learned Judges, as it is contended before us, that the execution application filed within 12 years from the date of the personal decree but beyond 12 years from the date of the final decree was barred by limitation.
The learned judges negatived that contention and held that the application was not barred. At page 492, the learned Judges made the following observations :
'Such a decree can undoubtedly be executed by the mortgagee against the person of the mortgagor or by attachment or sale of his other properties. The object of such a rule is undoubtedly to obviate the necessity of a fresh suit to recover the balance. Because the language is 'pass a decree for such balance', there is no reason why the decree-holder should not be allowed a period of 12 years from the date of the decree for the purpose of execution'.
We respectfully agree with the above observations.
(9) The only case that remains to be considered is that of the Judicial Committee in -- 'Banku Behari Chatterji v. Naraindas Dutt',' AIR 1927 PC 73, (G) on which strong reliance is placed by the learned counsel for the appellant in support of his contention. It is, therefore, necessary to state the fact of that case in some detail. There, one Sarat Chunder Dutt effected four mortgages upon his various properties. The first encumbered two properties only ; the second and third encumbered the same two properties and thirty four others ; the fourth which has given rise to the appeal, encumbered all thirty six and nominally at any rate some three others.
In 1901, the first mortgagee brought a suit on the original side of the High Court of Calcutta, making the three subsequent mortgagees and the mortgagor parties and obtained the usual preliminary decree on 27.8.1902 in respect of his mortgage and other mortgages and a final decree on 4.2.1905. The first three mortgagees were fully paid off. In regard to the fourth mortgage, there was still a large amount outstanding. In 1919, the fourth mortgagee made an application that satisfaction of his judgment might be entered in respect of a sum of Rs. 35, 000/- and that he might be at liberty to execute the decree for Rs. 82,725/- being the balance of principal and interest against the legal representatives of the mortgagor.
(10) It will be seen from the aforesaid facts that the mortgage final decree was made in 1905 and the application to execute the decree by the fourth mortgagee was only made in the year 1919 i.e., long after 12 years from the date of the final decree. It will further be seen that between the passing of the final decree and the making of the application for execution, no personal decree was made in favour of the mortgagee. Another fact to be noticed is that the mortgage decree was passed by the High Court of Calcutta on its Original Side. On those facts, the appropriate Article of the Limitation Act is Article 183, which reads :
183. To enforce a judgment, 12 yeras,When a present right to enforce the decree or order of any Court judgment decree or order accures to established by Royal Chartersom person capable of releasing the in the exercise of its ordinaryright. Original civil jurisdiction, or an order of (The Supreme Court).
The period of 12 years under that Article would be computed from the date when the right to enforce the decree accrues to the applicant. The Judicial Committee held that the right to enforce the mortgage-decree by obtaining a personal decree or otherwise accrued to the mortgagee when the final decree was passed. At page 75, their Lordships made the following observations :
'His righ to a personal decree accrued (to use the words of the Act) along with his other rights, when the final decree was made. If he wished to exercise it in time, he must also take timely steps for those proceedings which were a necessary preliminary'.
The argument of the learned counsel is, in our view, based upon a misapprehesion of the scope of the aforesaid observations. Their Lordships did not say that the right to execute a personal decree accrued when the final decree was made. But they designedly observed that the right to a personal decree as distinguished from a right to enforce a personal decree or execute a personal decree accrued to the mortgagee when the final decree was made. A superificial reading of those observations led to some confusion, of thought. But, to our mind, it is clear that the judicial Committee did not lay down that, if a personal decree was made, it could not be executed within 12 years from the date of that decree.
Further, that decision turned upon the express provisions of Art. 183 of the Limitation Act, Which made the starting point the date when the right to enforce a decree accrues to some person capable of releasing the right whereas under Section 48, C. P. C., and Art. 182 of the Limitation Act. the starting point is the date of the decree. That decision, therefore, has no bearing upon the question raised in the present case.
(11) To summarise, a personal decree is a decree within the meaning of its definition in Section 2(2), C. P. C. Instead of driving the parties to a separate suit, O. 34, R. 6. prescribes a procedure for adjudicating conclusively the rights of the parties. Under Section 48, the terminus a quo is the date of the decree. As the execution application was filed within 12 years from the date of the decree, it is clearly within time. The conclusion arrived at by the lower court in right.
(12) The appeal fails and is dismissed with costs.
(13) V. B. B. Appeal dismissed.