George Knox and Piggott, JJ.
1. In this case a conditional decree for sale under the provisions of Section 83 of the Transfer of Property Act (Act IV of 1882) was passed in favour of one Bhagwan Das and his sister-in-law Musammat Kaunsilla jointly ; the time fixed for payment under the said decree expired on the 30th of October, 1906. Bhagwan Das died before any order absolute for sale was passed. On the 30th of April, 1909, Banwari Lal and another, sons of Bhagwan Das, presented the application out of which the present appeal has arisen. They ask for 'a decree absolute under Section 89 of Act No. IV of 1882,' after issue of notice both to the judgement-debtors and to the joint decree-holder, Musammat Kaunsilla. With reference to the latter they state that she had declined to join in the application, and they accordingly pray the Court to pass such orders as it may deem necessary for protecting her interests, in accordance with the provisions of Order XXI, Rule 15, of the Code of Civil Procedure. Now the said Code (Act V of 1908) had come into force on the first day of January, 1909, and by Section 156 of the said Code, sections 85 to 90 inclusive, of, the Transfer of Property Act (Act IV of 1882) are repealed. It was therefore impossible for the Court to give Bhagwan Das and his brother a decree absolute under Section 89 of the Transfer of Property Act,' so that the application of the 30th of April, 1909, was certainly irregular in form. This point, however, was never taken by the judgement-debtors They put in a petition of objection contesting the application on various grounds; but they never took the point that the matter was not one in respect of which an application in execution could be made, and the case is now before us as an 'Execution Second Appeal.' The joint decree-' holder, Musammat Kaunsilla, has put in no appearance, the case has been contested by the judgement-debtors only, and it is they who are now appellants before this Court. Of the various points raised by them in their petition of objection most have been concluded against them by the findings of the lower appellate court, and are not now before us. The memorandum of appeal to this Court contains three paragraphs, but the second and third are merely arguments in support of the plea taken in the first. This runs as follows:
Because the court below has erred in holding that one out of two plaintiffs in a mortgage suit is entitled to obtain a decree absolute for sale.
2. As put before us in argument this plea involves three propositions of law:
(i) That the holder of a decree for sale passed under the provisions of Section 88 of the Transfer of Property Act (Act IV of 1882), who had not yet obtained an order absolute for sale under Section 89 of the said Act at the time when both sections were repealed by the passing of the new Code of Civil Procedure (Act V of 1908), cannot execute his decree without first obtaining a 'final decree' in the suit itself under the provisions of Order XXXIV, Rule 5, of the said Code.
(ii) That an application for such final decree is not a proceeding in execution, so that the provisions of Order XXI, Rule 15, of the Civil Procedure Code, have no bearing on such application.
(iii) That by reason of the use of the words 'on application made in that behalf by the plaintiff' in Order XXXIV, Rule 5, aforesaid, the application referred to must necessarily fail unless presented by all the persons who appeared as plaintiffs in the suit.
3. The first of these propositions is open to argument; but we are not satisfied that it is necessary for us either to affirm or to deny it in order to dispose of the present appeal. The new Code of Civil Procedure simply repeals sections 85 to 90 of the Transfer of Property Act, and does not contain any provision to the effect that any decree passed under Section 88 shall have the effect of (or shall be deemed to be) a 'preliminary decree' under Order XXXIV, Rule 4. The opening words of Order XXXIV, Rule, 5, refer to 'the amount declared due as aforesaid,' i.e., in a preliminary decree passed under the preceding rule. It seems probable that the Legislature did not contemplate the particular case of the holder of a decree under Section 88 of the Transfer of Property Act who had not yet obtained an order absolute for sale under Section 89 of the same Act when the new Civil Procedure Code came into force. That the decree is not abrogated by the repealing clause in the new Code is obvious enough ; the case is covered by the provisions of Section 6 of the General Clauses Act (Act X of 1897). The repeal of Section 89 of the Transfer of Property Act does not in itself dispose of the question ; a decree under Section 88 of the same Act directs that 'in default of the defendant paying as therein mentioned, the mortgaged property or a sufficient part thereof be sold,' and the question is whether a court has or has not power to pass an order directing sale to take place in execution of the said decree, even though Section 89 has disappeared from the Statute book.
4. An order for sale of some sort or kind there must be. The question whether such an order is nothing more than an order in execution, or whether it must necessarily take the form and have the effect of a 'final decree' under Order XXXIV, Rule 5, of the Code of Civil Procedure, does not really, arise in the present case. The order for sale actually passed is one in favour of all the decree-holders (including Musammat Kaunsilla) and is in the form prescribed for orders under Section 89 of the Transfer of Property Act; it is not open to objection on the ground of any defect or informality even if it be held that a ''final decree' under Order XXXIV, Rule 5, of the present Civil Procedure Code, was what was really required. On the pleadings in this case it is not really open to the judgement-debtors to contend that the order for sale, whatever might be its form or its legal effect when considered from other points of view, could be passed other wise than in execution of the original decree under Section 88 of the Transfer of Property Act, and upon an application to execute that decree. Their own petition of objection presented to the first court on the 22ud of May, 1909, only raises the point with which we are now dealing in the form of a plea that 'the sons of Bhagwan Das alone are not competent to take out execution of the whole of the decree.'
5. Moreover, we are of opinion that in any case the sonsof Bhagwan Das, as joint decree-holders, were entitled under the circumstances of this case to apply for an order for sale (whether or not such order be in fact a 'final decree' under Order XXXIV, Rule 5, of Act No. V of 1908 ) in favour of themselves and of Musammat Kaunsilla, Their right to do so was inherent in the decree obtained by them under Section 88 of the Transfer of property Act. The subsequent repeal of that Section could not 'affect any right acquired or liability incurred' thereunder, vide Section 6 of the General Clauses Act (Act X of 1897). Under that decree as passed, any one of the joint decree-holders could apply to the Court for an order absolute for sale subject to such orders as the court might see fit to pass to safeguard the rights of the other decree-holders. We see no reason for holding that this right has been taken away by subsequent legislation. It is not a question of procedure, but of a right inherent in the decree.
6. For these reasons we hold that this appeal fails, and we dismiss it accordingly with costs.