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Naziran Bibi Vs. Ali Ahmad - Court Judgment

LegalCrystal Citation
SubjectProperty;Limitation
CourtAllahabad
Decided On
Judge
Reported in(1902)ILR24All542
AppellantNaziran Bibi
RespondentAli Ahmad
Excerpt:
act no. iv of 1882 (transfer of property act), sections 86 and 87 - application for order absolute under section 87--execution of decree--limitation--act no. xv of 1877 (indian limitation act), schedule ii, articles 178 and 179. - - for the reasons we have stated above, we are unable to hold that limitation runs, in a case like this, from the date of the decree. we see no reason of holding the article to be inapplicable to an application like the one before us......vakil for the appellant referred us to the case of ranbir singh v. drigpal singh (1893) i.l.r. 16 all. 23 in which article 178 was held to be inapplicable to an application under the transfer of property act. that was a case decided by a single judge. in the later case of ham sarup v. ghaurani (1899) i.l.r. 21 all. 453 a division bench of two judges, one of whom, it may be observed, was the learned judge who had decided the case in 16 allahabad, held article 178 to be applicable to an application for a decree under section 90 of the transfer of property act. we see no reason of holding the article to be inapplicable to an application like the one before us. and as the said application was made within three years from the date on which the right to apply accrued, that is, from the date.....
Judgment:

Banerji and Aikman, JJ.

1. The respondent, Musammat Naziran Bibi, and one Bismillah Bibi, obtained a decree for foreclosure against the appellant under Section 86 of the transfer of Property Act, 1882, on the 27th of November, 1897. For the payment of the mortgage money the decree allowed a period of six months, which expired oh the 27th of May, 1898. On the 23rd of May, 1901, Musammat Naziran Bibi applied under Section 87 of the Act for an order absolute for foreclosure. That application was resisted on two grounds--first, that it was barred by limitation; and secondly, that Naziran Bibi alone was not competent to make it. The plea of limitation has been overruled by both the Courts below. With reference to the other plea, the lower appellate Court has reversed the order of the Court of first instance, and remanded the case to that Court under Section 562 of the Code of Civil Procedure. From this order of remand the present appeal has been brought.

2. The plea of limitation has been repeated before us, and it is urged that under Article 179 of the second schedule of the Indian Limitation Act, limitation should be computed from the date of the decree under Section 86, and not from the date on which, according to that decree, the mortgage money was payable.

3. According to the rulings of this Court an application for an order under Section 87 of the Transfer of Property Act is an application in execution. In Kedar Nath v. Lalji Sahai (1889) I.L.R. 12 All. 61 it was held by a Full Bench that the order mentioned in that section is an order in execution of the substantive foreclosure decree. It necessarily follows that an application for such an order is an application in execution. This view was upheld in the later Full Bench case of Oudh Behari Lal v. Nageshar Lal (1890) I.L.R. 13 All. 278. In that case it was held that an application for an order absolute for sale under Section 89 is a proceeding in execution, and subject to the rules of procedure governing such matters. The ruling in Kedar Nath v. Lalji Sahai was approved of, and although, as stated above, the case was one to which Section 89 applied, reference was made to Section 87, and the same rule was held to apply to applications under both the sections. Following the principle of these rulings and of the decision in Chunni Lal v. Harnam Das (1898) I.L.R. 20 All. 302 it was held in Parmeshri Lal v. Mohan Lal (1898) I.L.R. 20 All. 357 that an application for an order under Section 87 of Act No. IV of 1882, is an application in execution to which the provisions of the Limitation Act apply. With this view we entirely concur.

4. The next question which we have to consider is, what is the period of limitation governing an application under Section 87, and what is the date from which limitation should be computed? It is contended on behalf of the appellant that the limitation applicable is that prescribed by Article 179 of the second schedule, and that it should be computed under the first paragraph of the 3rd column of that article, from the date of the decree under Section 86. In support of this contention the rulings in Chunni Lal v. Harnam Das (1898) I.L.R. 20 All. 302 and Parmeshri Lal v. Mohan Lal (1898) I.L.R. 20 All. 357 and the dictum of Parsons, A.C.J. and Ranade, J., in Bhagwan Ramji Marwadi v. Ganu (1899) I.L.R. 23 Bom. 644 have been referred to. It is conceded that the only paragraph of Article 179, which is, if at all, applicable to the present case, is the firsts the other paragraphs having no application. Now, there can be no doubt that the decree or order referred to in that paragraph must be a decree or order which, on the date of it, is capable of execution, and that the terminus a quo under that paragraph cannot be a date on which the decree or order is not executable. This was held in Muhammad Suleman Khan v. Muhammad Yar Khan (1894) I.L.R. 17 All. 39 and in the recent case of Chhedi v. Lalu Weekly Notes 1902 p. 60. A decree for foreclosure under Section 86 of the Transfer of Property Act, which, in compliance with the provisions of that section, fixes a date for payment of the mortgage money, cannot be enforced before the expiry of that date. This is clear from the terms of Section 87. Under that section the plaintiff may apply for an order absolute for foreclosure if payment is not made as directed by the decree under Section 86. An application under Section 87 cannot, therefore, be made on the date of the decree under Section 86, and from the very nature of things limitation cannot run against the applicant from that date. Consequently the first paragraph in the third column of Article 179 cannot apply to an application under Section 87. It is true that in the cases mentioned above Article 179 was referred to, but the real question was that of the applicability of the second schedule of the Limit at ion Act. In the two cases decided by this Court, the date fixed in the decree for the payment of the mortgage money had long expired before the date of the application under consideration. It was not, therefore, necessary to decide in those cases what was the terminus a quo for purposes of limitation. One of us was a party to the ruling in Chunni Lal v. Harnam Das (1898) I.L.R. 20 All. 302 and is in a position to state that no question arose in that case as to the date from which limitation should be computed. In Parmeshri Lal v. Mohan Lal (1898) I.L.R. 20 All. 357 the learned Judge, Burkitt, J., after holding that an application under Section 87 of the Transfer of Properly Act was an application in execution to which the provisions of Article 179 of Schedule ii of the Limitation Act applied, observed as follows: 'It is admitted that a period of more than three years has elapsed between the date of the decree and the date of the application, The application was therefore time-barred when made.' The learned vakil for the appellant relies upon these observations as supporting his contention that limitation should be computed from the date of the decree. We have, however, the authority of our brother Burkitt for stating that he did not decide, and did not intend to decide, that the starting point for computing limitation is the date of the decree under Section 86, as the question did not arise for consideration. In the Bombay case to which we have referred the point was not decided. For the reasons we have stated above, we are unable to hold that limitation runs, in a case like this, from the date of the decree.

5. As Article 179 of the second schedule of the Limitation Act does not govern the application of the respondent, we have to determine what other article is applicable. In our opinion the application in question is governed by Article 178, that being the article which prescribes the limitation for an application for which provision is not made in any other article in the schedule. The application being one in execution, it cannot be said to be an application to which the Code of Civil Procedure has no reference. It is no doubt an application under the specific provisions of Section 87 of the Transfer of Property Act; but it is to the Code of Civil Procedure to which we must look for the procedure by which it is governed. The learned vakil for the appellant referred us to the case of Ranbir Singh v. Drigpal Singh (1893) I.L.R. 16 All. 23 in which Article 178 was held to be inapplicable to an application under the Transfer of Property Act. That was a case decided by a single Judge. In the later case of Ham Sarup v. Ghaurani (1899) I.L.R. 21 All. 453 a Division Bench of two Judges, one of whom, it may be observed, was the learned Judge who had decided the case in 16 Allahabad, held Article 178 to be applicable to an application for a decree under Section 90 of the Transfer of Property Act. We see no reason of holding the article to be inapplicable to an application like the one before us. And as the said application was made within three years from the date on which the right to apply accrued, that is, from the date fixed in the decree under Section 86 for payment of the mortgage money, the application was not time-barred.

6. In our opinion the third ground of appeal has no force, and the order of remand appealed against was a proper order. We dismiss the appeal with costs.


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