S.D. Singh, J.
1. This is a decree-holder's appeal arising outof proceedings for execution of decree No. 23 of 1933under Order XXXIV, Rule 5 of the Code of Civil Procedure.The final decree under the aforesaid rule was passed bythe Civil Judge, Gonda on 27th February, 1943. Two of the defendants filed Civil Appeal No. 79 of 1943, which was admitted on 10th July, 1943, and notice directed to be issued against the respondents. Later, however, it was reported that there was a deficiency of Rs. 668/8/- in court fee and the appellant was required to make up the same. On 14th November, 1944, the appellant's Counsel made a statement in Court that it was not proposed to matte good the deficiency in court-fee and the appeal was accordingly dismissed 'in default of prosecution'. It may also be mentioned at this very place that while the appeal was pending, execution proceedings were stayed on 11th November, 1944 (1943?). This interim order was modified on 24th April, 1944. While execution was allowed to proceed, it was directed that the sale of the property would not be confirmed till the decision of the appeal. This stay order was vacated on 17th November, 1944, when the appeal was dismissed.
2. The decree-holder took steps for execution of his decree in due course. The application for execution just preceding the one out of which this appeal has arisen was filed on 30th September, 1943. As the property, which was intended to be sold, was ancestral land revenue paying property, execution was transferred to the Collector under Section 48 of the Code of Civil Procedure. The U. P. Debt Redemption Act, XIII of 1940, was in force at the time and Section 16 of the Act regulated the manner in which the land of an agriculturist was to be sold. This Section 16 provided that the land which was intended to be sold, was to be valued in accordance with the provisions of the rules which may be prescribed therefor and the land transferred to the' decree-holder against the valuation so calculated. Section 17 of the Act gave further protection to agriculturists. Sub-section (1) of this section divided the agriculturists into two classes, those who were paying more than Rs. 25/- as local rates, and the rest. In the former case only so much of the land could be sold as was in excess of the one in respect of which the local rates payable came to Rs. 25/-. In the case of agriculturists whose local rates did not exceed Rs. 25/-, the land was not to be sold at all, but a self-liquidating usufructuary mortgage could be granted by the Court to the decree-holder for a period not exceeding 20 years.
The order of the officer exercising the powers of the Collector in connection with execution of this decree (to be referred to hereafter as the Collector) dated 5th November, 1952, was passed on the basis of an office report of the same date and it indicates that the decree-holder had conceded that the judgment-debtors were paying less than Rs. 25/- as local rates. They, therefore, became entitled to the protection for which provision was made under Section 17, with the result that on 5th February, 1952 a self-liquidating mortgage for twenty years in respect of the entire mortgaged zamiridari property was granted to the decree-holder. The certificate of mortgage was signed by the Collector on 18th June 1952. An application was moved by the decree-holder for delivery of possession over the property on 28th June, 195Z, An order passed the same day indicates that dakhal-dihani was directed to be issued and the order for delivery of possession was even directed to be given dasti to the decree-holder. The subsequent reports in the case Indicate that the warrant for delivery of possession was not taken by the decree-holder. In the meantime the Zamindari ABOLItion and land Reforms Act, 1 of 1951, which had already become the law, was enforced with effect from 1st July, 1952, and all estates vested in the State with effect from that date under Section 4 of the aforesaid Act. ' (3) on 25th February, 1953, therefore, the Collector passed the following order:
'Since the dakhal-dihani has not been effected up till now and no further proceedings against the proprietary title can be effected now, the file is sent back to the Court concerned for necessary order.'
When the record was received in the Court of the Civil judge, all what was done was that the result was noted in the register and the record was consigned to the record room.
4. The present application for execution was moved by the decree-holder on 17th November, 1956 in which it was alleged that a self-liquidating mortgage was granted to him, but he did not obtain possession over the same end that in the meantime the zamindari was abolished and that the record of the execution case was thereafter returned to the Court. The decree-holder, therefore, made a prayer for the attachment and sale of the bhumidhari land of the judgment-debtors details whereof are given in the execution application and it was further prayed that in case the decree was not satisfied out of the sale proceeds of 'that property, the balance might be realised out of the other movable and immovable properties of the judgment-debtors.
5. Objections were filed by the judgment-debtors against this execution application. They alleged that the decree-holder could not get their bhumidhari property attached and sold, that till then the decree-holder had not obtained any decree under Order XXXIV, Rule 6 of the Code of Civil Procedure and that, therefore, the decree under execution could not be executed against any property other than the one which was mentioned in the decree itself, that a self-liquidating mortgage was granted to the decree-holder on 5th February, 1952, and the whole of the decretal amount had been satisfied out of the same, that the decree-holder was not entitled to execute the decree and that the application for execution was barred by time.
6. The Civil Judge, Gonda considered these objections. He framed five issues in the case:
'(1) Can the property in question which is Bhumidhari property be attached and sold in the execution of the decree?
(2) Was no decree prepared under Order 34, Rule 6 C.P.C.? If so, its effect?
(3) Was the D. H.-O. P. granted a self-liquidating mortgage of the J. D. Objectors' property In the previous execution of the decree on 5-2-1952? If so, has the decree been satisfied? Its effect.
(4) Is the execution within time?
(5) To what relief, if any, are the objectors entitled/
'While considering the question of limitation the Civil judge considered the application of Section 48 of the code of Civil Procedure and held that execution was barred by time.
On issue No. 2 he held that no decree was obtained by the decree-holder under Order XXXIV, Rule 6 of the Code of Civil Procedure and as such the present execution application, which was directed against the property other than the mortgaged, property, did not lie.
On Issue No. 3 he held that the decree in question cannot be deemed to have been satisfied by the grant of the self-liquidating mortgage.
On issue No. 1 he held that bhumidhari rights of the judgment-debtors could be sold in execution of the decree. As, however, the execution application was found to be barred by time under Section 48 of the Code of Civil Procedure, the objection was allowed and the execution application dismissed. The parties were directed to bear their own costs. It is against this order that the decree-holder has come up in appeal to this Court.
7. The first question, which was canvassed at the Bar, relates to interpretation of Section 48 of the Code of Civil Procedure and its application to the facts of this case. The contention of the decree-holder-appellant was that, an appeal having been filed against the final decree by the judgment-debtors, the overall period of twelve years prescribed for moving an application for execution under Section 48 of the Code of Civil Procedure would start from the date of the dismissal of the appeal, while the contention of the respondents was that the appeal having been dismissed for non-payment of court-fee, it was a dismissal for default and did not amount to a 'decree' within the meaning of Section 2(2) of the Code and that, therefore, the period of twelve years would be counted from the date of the trial court's decree, which period was over long before the execution application was moved on 17th November, 1956.
8. The main reliance of the appellant has been on Rabia Bibi v. Mohammadi Bibi : AIR1960All515 which is a Full Bench decision of this Court. That is a decision under Art. 182 of the Limitation Act. But since considerable emphasis was laid on that decision, and it was contended that the time for the start of limitation either under Section 48 of the Code or Art, 182 of the Limitation Act would be the same, this decision may be referred to in some detail.
9. The decision in the Full Bench case turned upon the interpretation of the words '(where there has been an appeal) the date of the final decree or order of the appellate Court, or the withdrawal of the appeal' in Clause 2 of column 3 against Art. 182 of the Limitation Act. Although there are some earlier decisions to the effect that in order that limitation may begin from the date or the appellate Court's decree or order under this Clause, the appeal must have been heard and decided on merits and must not have been dismissed for default or for non-prosecution, it was held fay the Full Bench that all what is required under the aforesaid clause is that the order of the appellate Court is its final order and not that it is an order on merits. It was further painted out:
'There is absolutely no warrant for importing the word 'judicial' into the consideration and for laying down that the final order of the appellate court must be a judicial order. If there exists an order of the appellate Court and it is final in the sense that it terminates the appeal, the case is brought within the four corners of Clause 2, column 3 of Article 182 and the period of limitation must be computed from this date.'
The same view was taken by the Patna High Court in Krishna Kant Prasad v. Radhey Singh, AIR 1938 Pat 79, but in view of the Full Bench decision of our own High Court referred to above, any reference to It would be unnecessary.
10. A contrary view was taken in Dianat-Ullah Beg v. Wajid Ati Shah, ILR 6 All 438 and Fazl-Ur-Ranman v. Shah Muhammad Khan, ILR 30 All 385, which are cases under corresponding Art. 179 of Schedule II of the old Limitation Act, XV of 1877, but in view of the decisionof the Full Bench case, these cases must stand as having been overruled and are no longer authority for the proposition laid down therein.
11. It must, therefore, be taken as the view or this Court that if an appeal has been filed against the decree of the trial Court, then, whether the appeal was heard on merits or dismissed for default, it is the date of the dismissal of the appeal, which will be the starting point of limitation for an application for execution under Article 182 of the Limitation Act. The question for consideration, however, is whether this very date would be the date for the starting point of limitation for purposes of Section 48 of the Code.
12. Leaving aside those parts of Section 43 of the Code with which we are not immediately concerned, it provides that no order for the execution of a decree shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree sought to be executed. In order, therefore, that this provision may apply, there must be a fresh application. It must have been presented after the expiry of twelve years and this period of twelve years should be calculated from the date of the decree, which is sought to be executed.
13. The expression 'decree' has been defined in Clause (2) of Section 2 of the Code. It specifically provides that It shall not include any order of dismissal for default. The contention of the respondents was that the appeal having been dismissed for non-prosecution, it was dismissed for default and the appeal having been dismissed for default, the order of the appellate Court does not amount to a decree and the decree of the trial Court, therefore, does not merge in the order of the appellate Court and consequently, therefore, it is the decree of the trial court which is sought to be executed.
14. Before I come to the cases cited on either side, reference may be made to the provision in order XLI, Rule 5, which provided that an appeal shall not operate as a stay of proceedings under a decree or order appealed from, except so far as the Appellate Court may order, nor shall execution of a decree be stayed by reason only, of an appeal having been preferred from the decree. This provision, therefore, is a pointer to the fact that a decree of the trial Court is executable and would be the decree sought to be executed where an application for the purpose is actually moved, even though an appeal may have been pending. Section 144 of the Code makes provision for restitution where the decree of the trial Court may have been executed pending the disposal of an appeal against it, but is set aside or modified in appeal. This provision, also indicates that the decree of the trial Court is executable and will be deemed to have been the decree sought to be executed whenever execution is applied for during the pendency of the appeal. The question for consideration would only be whether this decree would merge in the decree of the appellate court' after the appeal has been decided.
15. In Rifaqat Husain v. Bibi Tawaif, ILR 39 All 393 : (AIR 1917 All 392) It was held that an order dismissing an appeal for default does not amount to a decree within the meaning of Section 2 of the Code or Civil Procedure and that consequently the decree of the trial Court does not merge in the decree of the appellate Court. The authority of this case is not at all shaken by the Full Bench decision in : AIR1960All515 (supra) inasmuch limitation under Article 182 of the Limitation Act would start from the date of the decree or; order of the appellate Court, even though the order dismissing the appeal for default does not amount to a decree and even though the decree of the trial Court may not merge in the decree or order of the appellate Court.
16. The words used in Clause (2) of Section 2 of the code, are 'that a decree would not include an order of dismissal for default' and the first question for consideration in this connection is whether an order dismissing an appeal, for want of prosecution would be an order of dismissal for default. The exact nature of the order of dismissal passed has already been indicated in the earlier part of this judgment The appellant was required to make up the deficiency of Rs. 668/8/-, which he did not do and the appeal was consequently dismissed in default of prosecution.
In In re N. Kayambu Pillai AIR 1941 Mad 836, which is a Full Bench decision of the Madras High Court, it was held that an order dismissing an appeal for nonpayment of court-fee is- an order of dismissal for default within the meaning of Section 2(2) of the Code.
This view was followed in this Court by Seth, J. in Tafazzul v. Shah Mohammad : AIR1949All261 and it was observed that the word 'default' used in Section 2(2) aforesaid is not confined to a default of appearance only and includes defaults of all kinds, including a default in prosecuting a case.
This Allahabad case was followed in its own turn by a Full Bench of the Andhra Pradesh High Court in In re, Chunduru Venkata Subrahmanyam : AIR1955AP74 and it was held that the word 'default' includes default of prosecution also.
17. The late Chief Court of Oudh also held in Jagdish Kumar Singh v. L. Harikishen Das, AIR 1942 Oudh 352 that the word 'default' did not necessarily mean default of appearance and that it included default of prosecution as well.
18. It is not necessary to refer to other decisions cited at the Bar. It appears to be an established view that the word 'default' does not necessarily mean default in appearance and that even default in the payment of the court-fee or prosecution of an appeal may amount to a default within the meaning of Section 2(2) of the Code.
19. The order of dismissal of the appeal for want of prosecution or for non-payment of court-fee having been held to be an order of dismissal for default, it could: not, according to the plain reading of Section 2(2) of the Code, amount to a decree and reference may be made to some of the decisions on that point. In ILR 39 All 393 : (AIR 1917 All 392), to which reference has already been made, and Balram Das v. Harakh Chand : AIR1949All754 it was held that where an appeal is ordered to be dismissed for default, the order does not amount to a decree The position, therefore, is that the order dismissing the appeal in the instant case does not amount to a decree.
20. The next point for consideration is whether on the appeal being dismissed even for default, the decree, of the trial Court merged in the order passed by the Chief Court in appeal.
21. In Syam Mandal v. Sati Math Banerjee, AIR 1917 Cal 728 it was pointed out that though the decree of a trial Court is merged in the decree of the appellate Court whether the latter confirms, amends or reverses the original decree, and that it is the appellate Court's decree which atone can Be executed, this doctrine did not apply where an appeal is dismissed for default or where an appeal fails for non-prosecution and that it cannot appropriately be said in such cases that the Court of appeal adopts the decree of the primary Court, the order of dismissal not being a decree.
The same view was taken by Banerjee, J. in ILR 39 All 393 : (AIR 1917 All 392) (supra) where he pointed out:
'As the appellate Court ordered the appeal before it to be dismissed for default, that order is not a decree and as it is not a decree, the decree of the Court of first instance was not superseded by it and did not merge in it.'
22. In Chandri Abdul Majid v. Jawahir Lal, AIR 1914 PC 66 their Lordships of the Judicial Committee pointed out that an order of the Privy Council dismissing an appeal for want of prosecution did not deal judicially with the matter of the suit and can, in no sense, be regarded as an order adopting or confirming the decision appealed from and that it merely recognises authoritatively that the appellant has not complied with the conditions under which the appeal was open to him and that, therefore, he is in the same position as if he had not appealed at all. The order of the High Court, which was consequently held to be final, was held not to nave merged into the order of the Privy Council as the appeal to the Privy Council was dismissed for want of prosecution. The appeal having been dismissed for default and there being no decree of the appellate Court, there can be no question of the decree of the trial Court having been merged in any decree of the appellate Court, for the simple reason that there is no such decree at all and if the decree of the trial Court has not merged in any decree of the appellate Court, the necessary inference would be that it would be the decree of the trial Court which would be sought to be executed within the meaning of Section 48 of the Code, even though according to the peculiar wording of Clause (2) in column 3 of Article 182 of the Limitation Act, limitation for purposes of execution application may start from the date of dismissal of appeal for default.
23. In Yeswant Deorao v. Walchand Ramchand : 1SCR852 it was pointed out that Arts. 181 and 182 of the Limitation Act and Section 48 of the Code should be read together, and it was urged on the basis of this observation that in the matter of the start of limitation Section 48 and Article 182 should be similarly interpreted. It is difficult, however, to accept, that contention inasmuch as while Section 48 merely says that the period of twelve, years' limitation would begin to run from the date of the decree sought to be executed) Article 182 prescribes different periods for the start of limitation for an application for execution having regard to different contingencies. One of the contingencies contemplated is the one under Clause (4) of column 3, which provides for the case where the decree has been amended, when that contingency arises, limitation would start from the date of the amendment of the decree and in Fakir Chand v. Kundan Singh : AIR1932All351 a Division Bench of this Court held that an amendment of a decree does not give a new, date for starting of the overall period of twelve years' limitation under Section 48, even though the application may be within time under Article 182 and reference was made to the language used in first column of Article 182, which reads;
'For the execution of a decree or order of any Civil Court not proyjded for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908'.
24. The obvious intention is that limitation under Article 182 would apply only if an application for execution is not already barred by time either under Section 48 of the Code or Article 183 of the Limitation Act and this is what was pointed out in : AIR1932All351 (supra).
25. Even their Lordships of the Supreme court observed in : 1SCR852 (supra) that Arts. 181 and 182 of the Limitation Act and Section 48 of the Code of Civil Procedure are independent or parallel provisions and different in their scope and abject.
26. In Jagmohan Tewari v. Mahadeo Prasad, AIR 1932 Oudh 220 it was held that to an application for execution of a decree, Article 182 is to be applied first and Section 48 of the Code comes into play only if an application answers the test under Article 182. It was further held that the effect of Section 48 was not to supersede the law of limitation and that this section only fixes an outside period after which execution of a decree, though not barred by Limitation Act, may not be granted. This case does not, however, materially help the appellant. In fact, if an application is barred by time under Article 182 of the Limitation Act, the question of applying the provisions of Section 48 would not apply at all. All what was, therefore, pointed out in this case was that even if an application is within time under Article 182, it may yet be beyond time under the overall period of limitation of twelve years under this section.
In Balkishan Dhanraj v. Dhanraj Jainnarayan, (S) AIR 1956 Nag 200 it was held that the maximum period for execution, which is provided under Section 48, cannot be made to run from a date different from the one fixing the commencement of the limitation for execution under Article 182, but the facts in that case were different, a final decree was passed in that case during the pendency of an appeal against the preliminary decree and it was held that limitation for execution of the final decree started for purposes of Article 182 as well as Section 48 of the Code from the date of the dismissal of the appeal against the preliminary decree, it may be observes that that was a case in which the appeal against the preliminary decree was heard on merits and the validity of the final decree depended upon the confirmation of the preliminary decree by the appellate Court, if the appeal against the preliminary decree were to be allowed, the final decree would automatically fall. It was under these circumstances that it was held that the date for the commencement of the limitation for both the provisions was the date of dismissal of appeal against the preliminary decree.
27. Kandaswami Pillai v. Kannappa Chetty : AIR1952Mad186 , does not deal with the question under consideration in this appeal at all. There the question was whether the period of twelve years' limitation prescribed under Section 48 could be regarded as a period of limitation for purposes of Section 15(1) of the Limitation Act. It has, therefore, no bearing on the facts of the present case.
28. Reliance was placed upon certain observations of their Lordships of the Supreme Court in State of U.P. v. Mohammad Nooh AIR 1958 SC 86, where it is said that a decree of the Court of the first instance may be said to be merged in a decree passed on appeal therefrom or even in the order passed in revision but it does so only for certain purposes, namely for the purposes of computing the period of limitation for execution of the decree, or for computing the period of limitation for an application for final decree in a mortgage suit. But their Lordships further pointed out that whatever the theory may be under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. This decision is no authority for the proposition that even though an appeal may have been dismissed for default and the order passed by the appellate Court may not amount to a decree, the decree of the trial Court would merge in that order and it would be that order which would be capable of execution.
29. Norati v. Abhai Karan is again a decision under Article 182 (2) of the Limitation Act. and has nothing to do with the interpretation of Section 48. The same view has been taken in this case as has been done in the Full Bench of this Court in : AIR1960All515 (supra) and does not, therefore, carry us any further.
30. P. V. Ramachandra Rao v. P. Parasuramayya, AIR 1940 Mad 127 is a Full Bench decision of the Madras High Court, which 'followed AIR 1932 Ail 3bl. It was field in that case that inasmuch as Article 182 clearly leaves the provisions of Section 48 untouched, there could be no execution of a decree governed by $. 48 when twelve years had passed from the date of the decree and that subsequent amendment of the decree has no effect thereon. In K. Nagalinga Chetty v. O.K. Srinivasa Iyengar, AIR 1941 Mad 477 the Full Bench decision, just referred to above, was followed and it was held that where a revision petition against the decree of a Small Cause Court was presented in the High Court, the period of twelve years should be computed from the date of the decree of the Small Cause Court and not from the decision of the High court in revision.
31. In Jagannath Bal v. Sadhu Charan Bal, AIR 1943 Fat 371 which is a Single Judge decision of the Patna High Court, it was held by Rowland, J. that for determining the period of twelve years' limitation under Section 48, reference must be made exclusively to the provisions or the Code and not to those of another enactment. It was held that where an appeal is presented, limitation under Article 182 (2) would start from the date of the final order passed in appeal whatever the result in appeal may be, but that in order to count twelve years under Section 48 of the Code from a date later than that of the trial Court's decision, It is not sufficient that an appeal has been presented any more than It will avail to show that were has been an amendment of the decree.
It was further pointed out that an appellate court passes an order whenever it adjudicates and decides the rights of the parties, whether it reverses, modifies or affirms the first Court's decision, and whether or not the opposite party is called on to answer the appeal, in all such cases the trial Court's decree, of course, merges in the appellate Court's decree and limitation for purposes of Section 48 would start from that date, but, as was further pointed out in the Patna Case, there is no decree where an appeal or an application in revision has been' dismissed in default without an adjudication.
32. Bhup Indar Bahadur Singh v. Bijai Bahadur Singh, ILR 23 All 152 (PC) is a Privy Council decision, but it can be of no help to the appellant, in that case a decreewas passed by the District Court, but reversed by the High Court. The Privy Council, however, allowed the appeal and restored the decree of the District Court, under these circumstances it would be the decree passed by the Privy Council which would be the final decree in the case and limitation even for purposes of Section 48 would obviously start from the date of that decree.
33. In Ram Kumar v. Chaube Rudra Dutt : AIR1951All493 a Division Bench of this Court held that an order dismissing an appeal for want of prosecution is a judicial order disposing of the appeal and that it is a final order within the meaning of Clause (2) of Article 182. This case also, therefore, takes the same view as the one taken in : AIR1960All515 (supra) and does not have any direct bearing on the interpretation of Section 48.
Having regard to the fact that an order dismissing anappeal for non-payment of court-fee or for want of prosecution does not amount to a decree, the decree passed bythe trial Court does not merge in the order of the appellate Court. The decree which would for purposes ofSection 48 of the Code be sought to be executed, would, therefore, be the decree of the trial Court even though limitation for purposes of Article 182 of the Limitation Act maystart from the date of dismissal of the appeal for default under Article 182(2), and the period of limitation duringwhich an application for execution may be moved underSection 48 of the Code would, under these circumstances,start from the date of the decree of the trial Court, i.e.,27th February, 1943, and not from the date of the orderof the Chief Court, which was passed on 17th November',1944. In that view, therefore, if the application movedon 17th November, 1956, was a fresh application for execution, it would be barred under Section 48 of the Code.The next contention of the appellant therefore was thatthe application, which was filed by him was not a freshapplication, but an application in continuation of the previous application.
34. It will be recalled that the decree under execution was a decree under Order XXXIV, Rule 5, of the Code and the only prayer which the decree-holder could make was about sale of the mortgaged property. But under Section 17 of the U.P. Debt Redemption Act (U. P. Act XIII of 1940) the property could not be sold and the only relief which the decree holder could get was by way of a self-liquidating mortgage; and it was this prayer which was made by him in his application for execution and even granted by the Court. In the subsequent application he prayed for attachment and sale of the bhumidhari property of the judgment-debtors and made a further prayer that in case the decretal amount is not recovered, by sale thereof, the decretal, amount may be realised from the other movable and immovable properties of the judgment-debtors. The prayer made in the second execution application, therefore, was quite different from the one made In the earlier application and, to all intents and purposes, therefore, the second application, out of which this appeal has arisen, was not in continuation of the previous application, but a fresh application with a new prayer.
35. Reliance was placed by the learned counsel for the appellant on Pearey Lal v. Sheo Saran AIR 1939 Oudh 118, P. Satyanarayana v. B. Nagabushanam : AIR1951Mad429 , Girdhari Lal v. Ram Charan Lal : AIR1926All331 and Chhattar Singh v. Kamal Singh : AIR1927All16
36. In AIR 1939 Oudh 118 (supra), an application was moved under Section 39 of the Code for transfer of the decree to another Court. The application was, however/ defectiveand was returned to the decree-holder on 9th May, 1932 for being resubmitted within three days after making necessary amendments in it along with a copy of the decree. The decree-holder did not comply with that order but on 5th July, 1934, made a fresh application for transfer of the decree under Section 39 and then urged that this second application was merely in continuation of the previous one.
It was held that the order passed on the 1932 application that it should be filed after necessary corrections were made in the same, could not be regarded as a final order, that if the order was not complied with, the application could be rejected, and that there being no order to that effect, the 1932 application was to be deemed to be still pending. It was under these circumstances that the decree-holders were held entitled to have the 1934 application treated as one in continuation of the 1932 application.
37. In : AIR1951Mad429 (supra) a pending execution application was closed erroneously by the Court either for statistical purposes or under some error and the decree-holder was free from all blame, it was held that the decree-holder had a right to have the old execution application revived and proceed with it from the stage immediately before the error and that a subsequent execution application filed by him was only to be treated as a reminder to the Court to revive the old execution application irregularly and erroneously closed by it and that no question of limitation was involved in the same.
38. In : AIR1926All331 (supra) execution was transferred to the Collector for sale of revenue paying property. On the date of the sale which was being held in the Court room of the Sale Officer, the decree-holder had just gone out for a short time when the sale officer passed an order that the papers be returned to the Civil Court. Later the decree-holder applied to the Civil Court for the papers being sent back to the Collector for proceeding with the sale of the property from the stage at which the proceedings had been dropped and the application was allowed by the Court. When an objection was filed that the application moved by the decree-holder for the record being sent to the Collector was a fresh application for execution and beyond time, it was held that it was in continuation of the previous proceedings. It was pointed out that the right of the decree-holder to execute the decree will not necessarily be defeated, if by reason of causes for which the decree-holder was not responsible, the final completion of the proceedings in execution initiated by his application could not nave been obtained within the period provided by law.
39. In : AIR1927All16 (supra) which is a Full Bench case decided by five Judges, it was pointed out by Walsh, A. C. J., and Mukerji, J. that whether an application is in substance a fresh application or an attempt to revive a former one, is as a general rule , a question of fact to be decided with reference to all the circumstances of the case. Even in this case execution had been transferred to the Collector, but, while execution proceedings were pending in his Court, their progress was stayed by an injunction issued in a regular suit. That injunction was withdrawn in 1920 and the execution case was thereafter taken up by the Collector who recorded an order reciting that in spite of notice given to the son of one of the decree-holders, no steps were being taken to prosecute the case in his Court, and he, therefore, directed that the papers be returned to the Civil Court. When the papers were received by the Civil Judge, he, without issuing notices to the parties, consigned them to the record room. Later an application was moved purporting to be a fresh application for execution, but it Was sought to be treated as being in continuation of the previous one and it was held that it was in fact an application in continuation of the previous one.
This case and the one referred to earlier, it wasurged, are on all fours with the instant case. As waspointed out in this Full Bench case, the Limitation Act doesnot prohibit, either expressly or by necessary implication,the making of an application for revival of an executionpending in Court. In both these cases proceedings werepending before the Collector and were returned by him tothe Civil Court for default on the part of the decree-holderto proceed with the same. In both the cases when therecord was received by the civil Court from the Collector;it was consigned to the record room without any noticeto the decree-holder. Even in the instant case the Collectorreturned the record to the civil Court when the decreeholder in whose favour a certificate of mortgage had beenprepared failed to take possession over the property;and the civil Court, on receiving the record, directedunder its order dated 25th May, 1953 that the record Beconsigned to the record room. As will be shown later onthe omission of the decree-holder to obtain possession overthe property in respect of which the self-liquidatingmortgage was granted in his favour was due to the tactthat with effect from 1st July, 1952, zamindari propertyhad been abolished in this State, Had notice been givento the decree-holder, he might have, it was argued, takensteps at that very time in furtherance of the executionof his decree.
40. It was contended on behalf of the respondents that where a different prayer is made in an execution application than the one in the previous application, the second application could not be regarded as in continuation of the previous one and reliance was placed on several decisions of different Courts in which it was held that where the second application was moved against property different from the one mentioned in the previous application, the second application will be deemed to be a fresh one, vide Ramdeen v. Laxmi Kumar Shriniwas : AIR1959MP396 Ram Ranbijaya Prasad Singh v. Kesho Prasad Singh, AIR 1941 Pat 635, Marulusiddappa v. Lakshmipathi AIR 1950 Mys 64 and Shrikisandas v. Sitarara Bajirao, AIR 1952 Nag 126 (FB).
In Noor Mohammad Khan v. Rameshwar Prasad Singh, AIR 1945 Oudh 84 a second application was moved during the pendency of the previous one, but the prayer was for substitution of a completely different property for the property contained in the execution application and it was held that it was a fresh application for execution, even though it was framed as an application, for amendment.
In Maharaj Bahadur Singh v. A. H. Forbes, AIR 1929 PC 209 different applications for execution were made on different dates and the decree-holder desired to proceed against different properties in each one of them. In one of the earlier applications, he wanted to proceed on the footing that the decree created a charge on certain tenures, but that contention was abandoned in subsequent applications and it was consequently held that the subsequent application in that case was not in continuation of the earlier one.
41. The Allahabad view is also exactly the same. In Bandhu Singh v. K. T. Bank Ltd., Gorakhpur : AIR1931All134 it was held that where the decree-holder applied after the expiration of twelve years from the date of the decree for the attachment and sale of property which was not mentioned in any of the previous applications for execution, the application is a fresh application within the meaning of Section 48 of the Code and could not be entertained.
42. Considerable reliance was placed on Shiva Shankar Das v. Mufti Syed Yusuf Hasan, AIR 1934 An 481 which is a Full Bench decision, but the facts of that case were materially different. In the earlier execution application what the decree-holder mentioned as his prayer was that the decree be transferred to the collector for sale of the property and he further mentioned that it the property mentioned in the application was found insufficient for the realisation of the amount due under the decree, then he would give a further list of the other mortgaged properties, later. The execution case was transferred to the Collector in due course and the property mentioned in the application was sold. Thereafter the papers were returned by the Collector and consigned to the record room. The decree-holder then moved an application for the sale of some more property belonging to the judgment-debtor and it was contended that this amounted to a fresh application within the meaning of Section 48 of the Code, but it was held that it was in continuation of the previous one.
The facts of that case, were, materially different from those of the instant case inasmuch as there in the earlier application the decree-holder had specifically mentioned that if the property mentioned in the application was found Insufficient for the satisfaction of his decree, then he would give details of some more mortgaged property. It was held by the Full Bench that no orders had been passed by the Court on that part of the prayer of the decree-holder and since the earlier execution application will be (teemed to have been still pending on that account, the second execution application was only in continuation of the previous one.
43. The position in the instant case is that in the earlier execution application the decree-holder wanted the mortgaged property to be mortgaged with him under a self-liquidating mortgage under Section 17 of the U. P. Debt Redemption Act and that was the only prayer made in that application. The prayer was granted. A self-liquidating mortgage was granted to the decree-holder and a certificate of mortgage was prepared and it was only after the decree-holder had failed to obtain possession that papers were returned by the Collector to the Civil Court and consigned to the record room. There was thus no prayer left out in the earlier execution application for which that application might be deemed to be still pending.
44. In the two Allahabad cases : AIR1926All331 (supra) and : AIR1927All76 (supra), the subsequent applications moved by the decree-holder were held to be in continuation of the previous execution applications because the papers had been returned by the Collector without the decree being executed to the extent the decree-holder desired the same to be done and when the record was returned by the Collector at that incomplete stage, even the civil Court did not take notice of the same and consigned the papers to the record room without giving notice to the decree-holder. In this particular case nothing remained to be done so far as the execution of the decree was concerned. The self-liquidating mortgage was granted as prayed by the decree-holder. Even the warrant for delivery of possession had been issued. It was for the decree-holder to apply afresh for delivery of possession if he wanted to or if it could legally be taken; and it cannot, therefore, be 'said that the record of the execution case in relation to the earlier execution application was consigned to the record room at an incomplete stage.
45. What the decree-holder now wanted was to get the bhumidhari property of the judgment-debtors attached and sold and in this application of course, a prayer has been made that if this property was found insufficient for the satisfaction of the decree, the balance may be realized from the other movable and immovable properties of the judgment-debtors. But the prayer which has been made in this application is in respect of a property which was not mentioned in the earlier execution application. It may be that when the earlier execution application was moved, bhumidhari rights had not come into existence at all, and the land in which the judgment-debtors have bhumidhari rights now was probably their sir and Khudkasht when the earlier execution application was moved and was included in the zamindari, property which was the subject-matter of the mortgage decree; but as has been held by the Supreme Court in Sheo Ambar Singn v. Allahabad Bank Ltd., Allahabad : 2SCR441 , bhumidhari property of an ex-zamindar is not in substitution of his old zamindari property, and is a special right conferred on the intermediary by virtue of his cultivatory possession of the lands comprised in his zamindari property. It cannot, therefore, be said that this zamindari property is the same property which was mortgaged with the decree-holder.
Even the prayer which has now been made is different. The prayer in the earlier application was for grant of a self-liquidating mortgage and in the present application it is for attachment and sale. To my mind, therefore, the application filed in 1956 was a fresh application and having been filed beyond twelve years of the date of the decree, which is sought to be executed, it is barred by the twelve years rule of limitation.
46. The finding on these two questions should be enough to dispose of the appeal, but since other questions were also argued they might as well be decided. The contention of the respondents was that the decree was fully executed when a self-liquidating mortgage was granted in favour of the decree-holder. This plea raises two questions, viz.,
(1) Whether grant of a self-liquidating mortgage for twenty years satisfies the decree as a whole or in part; and
(2) What is the effect of the abolition of zamindari since 1st July, 1952, and the failure of the decree-holder to obtain possession in pursuance of the certificate of mortgage granted to him.
47. The first of these two questions relates to the interpretation of the provisions of the U. P. Debt Redemption Act Section 16 of the Act provides for execution of decree against the land of an agriculturist. Under Sub-section (3) of this section the Court shall determine, in accordance with the rules made by the State Government, the annual value of such land in the year in which the decree is sought to be executed by sale and shall calculate the value of such land by multiplying the annual value by the prescribed multiple and under Sub-sections (4) and (5) the land against which execution is sought will be transferred to the decree-holder at the valuation so calculated. Sub-section (6)then provides that when land is transferred under the provisions of this section, the decree shall be deemed to be satisfied upto the value of such land as determined under the provisions of the section and all the rights of the agriculturist in such land deemed to have been sold to the decree-holder; but where the property is so transferred in execution of a decree on the basis of the first mortgage, Section 21 provides that even if the decree remains unsatisfied in part after proceedings under Section 16, 'no decree shall be passed for the balance due to such plaintiff or defendant, as the case may be, and if anydecree for such balance has been passed before the commencement of this Act, it shall be deemed to have beensatisfied'.
48. The reason why reference is made to the passing of a decree for the balance, is, that where property is sold or transferred under Section 16 under a decree passed under Order XXXIV Rule 5 of the Code, any balance whichcannot be realized from the mortgaged property may be recovered only under a decree passed under Order XXXIV, Rule 6, of the Code and the law has supposed that In the case of a first mortgage, the sale even at a forced valuation should be sufficient to satisfy the decree.
49. A further protection is given to the agriculturists under Section 17 of the Debt Redemption Act, and, as has been mentioned earlier in the judgment, agriculturists for the purpose of this section are classified as those paying more than Rs. 25/- as local rates or upto Rs. 25/-. The land of those zamindars who do not pay local rates in excessof Rs. 25/- cannot be sold at all. Under the third proviso of Sub-section (1) of Section 17 ail what can be done is to execute a self-liquidating mortgage of this property for a period of twenty years, and this is what was done in this case.
The question is whether execution of this self-liquidating mortgage exhausts the decree or whether any unrealised balance may yet be recovered by the decree-holder. The record of the execution case which was summoned for the purpose of hearing of this appeal shows that in twenty years, the land could pay only a sum of Rs. 3,689/10/- while the principal amount under the decree was Rs. 10,98572/- and Rs. 1,551/- were due as costs and there would be other execution expenses, interest etc. The decree could not, therefore, have been said to have been satisfied in full; but the question for interpretation is whether under the law that is to be presumed.
50. But for Section 17 of the U. P. Debt Redemption Act(U. P. Act No. XIII of 1940), this land would have been liable to be sold under Section 16. Under Sub-section (6) of Section 15 the decree would have been satisfied only to the extent of its total valuation but under Section 21 it would not have teen possible for the decree-holder to obtain a decree forthe balance under Order XXXIV Rule 6, with the result that thedecree would be deemed to have been fully satisfied afterthe transfer of the land under Section 16.
51. The question is whether by giving further protection to the agriculturists under Section 17, the Legislature intended to give them some additional advantage or wanted to take away some of those advantages which were given to them under Section 16 read with Section 21. The U. P. Debt Redemption Act was a remedial Act intended to provide relief from indebetedness to agriculturists and workmen. The Act has, therefore, to be so interpreted as to further the intention of the Legislature and not to retard the same. It cannot be believed that when the Legislatureprovided that the land of agriculturists whose local rate did not exceed twenty-five rupees (who may be referred to as smaller agriculturists) was to be transferred to the creditor under a self-liquidating mortgage under Section 17, the decree-holder was put in a better position than what he would have been if the land were transferred to him under Section 16. Section 17 was intended to give greater protection to a smaller agriculturist than what' he would have been entitled to under Section 16; and even though Section 21 does not provide for decree not being passed against the judgment-debtor for the balance where property is transferred to the decree-holder by way of a self-liquidating mortgage, the intention must be believed to be that for' purposes of Section 21 even the certificate of mortgage granted under Section 17 is to be regarded as a certificate of sale, in fact, a certificate of mortgage is referred to as a certificate of sale under Sub-section (2) of Section 20, though that reference is only for the purposes of registration. Any other interpretation of the provisions of Sections 16, 17 and 21 would make the provisions of the Act as a whole inconsistent.
52. This is exactly the view taken in B. Chotey Lal v. Fazlul Rahman Khan : AIR1954All176 and Ram Laknan v. Sumesar Rai : AIR1952All861 .
53. The next question to be considered is as to the effect of the abolition of zamindari with effect from 1st July, 1952. It was because of this that the decree-holder did not obtain possession over the property which was given to him under the self-liquidating mortgage, a usufructuary mortgage is not one in which possession is delivered to the mortgagee simultaneously with the execution of the mortgage deed. A usufructuary mortgage, which in other words means a mortgage with delivery of possession, is defined in Clause (d) of Section 58 of the Transfer of Property Act and the opening words of that clause specifically mention not only the case of a mortgagor who delivers possession, but also of a mortgagor who expressly or by implication binds himself to deliver possession.
When the Collector granted a self-liquidating mortgage to the decree-holder under his order dated 5th February, 1952, and even the mortgage certificate was prepared on 18th June, 1952, there was execution of a self-liquidating mortgage in his favour even though the mortgage was to come into effect from 1st July, 1952, if the decree-holder thought that zamindari was going to be abolished with effect from 1st July, 1952, it was open to him to ask the Collector not to grant him the self-liquidating mortgage, but not having done so and having himself applied for grant of the self-liquidating mortgage in his favour, he has to take that mortgage for whatever it may be worth. It may be that by operation of the law zamindari estates were abolished with effect from 1st July, 1952, and nothing remained thereafter on which the decree-holder could obtain possession, but he was a mortgagee under the self-liquidating mortgage all the same and it could not be said that he was not left with any rights at all. Section 6(h) of the U. P. Zamindari Abolition and Land Reforms Act refers to the rights of the mortgagees in possession. That clause reads:
'No claim or liability enforceable or incurred before the date of vesting by or against such intermediary for any money, which is charged on or is secured by mortgage of such estate or part thereof shall, except as provided in Section 73 of the Transfer of Property Act 1882, be enforceable against his interest in the estate.'
If the appellant could not secure possession over the property after the 1st of July, 1952, it was open to mm toclaim compensation in respect of the land which was mortgaged with him under this Clause (h). The law specifically provides that such mortgagees would be entitled to claim under their mortgage money under the provisions of Section 73 of the Transfer of Property Act. It is Sub-section (2) of that section which is relevant, it reads:
'Where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894 (1 of 1894) or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be 'entitled to claim payment of the mortgage-money, in whole or in party out of the amount due to the mortgagor as compensation.'
54. The appellant could, as a mortgagee, claim payment of the mortgage money in whole or in part out orthe amount due to the mortgagor as compensation. Thecase of Basant Lal v. Jagdish Narain, 1956 All LJ 91 isnot on all fours, but it supports the contention of therespondents to some extent. It is a case in which themortgagee was in possession for sometime , before thezamindari was abolished.
55. A similar point came up for decision beforetheir Lordships of the Supreme Court in Krishna PrasadV. Gourl Kumari Devi, Civil Appeal No. 352 of 1959, decidedon 5th March, 1962 (not yet reported) : (Since reportedin : AIR1962SC1464 ). This case relates to Bihar wherealso zamindari has been abolished. The Zamindari Abolition Act in that State also makes provision for paymentof compensation to the mortgagees. All claims based onmortgages relating to estates have to be submitted to theClaims Officer and the compensation is first to be paidto the creditor holding such mortgage or charge and it is only the balance which is to be paid to the proprietorand it has been held by their Lordships that the onlyremedy of the mortgagee is to proceed against the amountof compensation in accordance with the terms of provisions of the Bihar Act and that they were not entitledto execute any personal decree against the mortgagorswithout taking recourse to the remedy available to themunder the decree.
For similar reasons the appellant must take recourse to the provisions of Section 73 of the Transfer of Property Act under Clause (h) of Section 6 of the U. P, Zamindari Abolition and Land Reforms Act and so long as that is not done, they cannot proceed against the property of the respondents other than the one which has been mortgaged. From that point of view, therefore, the appellant cannot possibly have any claim to proceed in execution against any other property of the respondents.
56. The appellant has another hurdle in his way. Even if it is held that his decree was not fully paid on by execution of the self-liquidating mortgage in his favour under Section 17 of the U. P. Debt Redemption Act, 1940 and that he could go behind his prayer in the execution application and refuse to accept the mortgage, execution of the decree according to its own terms became impossible on 1st July 1952 when the zamindari was abolished. The property which was mortgaged could not, therefore, be sold. If the appellant had any right to proceed against the person or other property of the mortgagors under Order XXXIV Rule 6, Civil Procedure Code, he had to apply for the same under Article 181 of the Limitation Act. There is a period of three years prescribed for such applications from the date the right to apply accrues. The application should have, therefore, been moved by 1st July, 1955.
The appellant's right to apply for a decree under Order XXXIV Rule 6 has also got barred by time. He cannot, therefore, obtain a decree under Order XXXIV Rule 6 Civil Procedure Code, and that was the reason why, instead of applying for such a decree, he merely put in an application in execution, as if it was only an application for execution of the decree, and nothing more.
57. From every point of view, therefore, the execution application was liable to be dismissed,
58. The appeal has no force and is consequently dismissed with costs to the contesting respondents,
(Note :- judgment was pronounced by N.U. Beg, J. in open Court under Chapter VII Rule 1(3) of the Rules of the Court.)