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Bohra Tara Chand and ors. Vs. Murtaza Husain - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in78Ind.Cas.1030
AppellantBohra Tara Chand and ors.
RespondentMurtaza Husain
Cases ReferredKousilla v. Ishri Singh
Excerpt:
civil procedure code (act v of 1908), section 4 - mortgage-suit--preliminary decree passed before coming into force of code--final decree passed after code--execution of decree--application made more than twelve years after date of decree, whether barred. - .....the preliminary deoree was passed on the 4th of may 1908. as on this date the new code of civil procedure had not come into force the decree was passed under section 88 of the transfer of property act. the final decree was obtained by the decree-holders on the 19th of august 1909, when the new act had come into force. the last application for execution was presented after the expiry of 12 years from 19th august 1909. the question, therefore, arises whether this last application would be governed by the old code of civil procedure or by act v of 1908. if the old code governed the case, he 12 years' limitation would not apply because the decree in the case is a mortgage-decree. if the new code applies the application would be barred by time.2. the learned counsel for the.....
Judgment:

1. This is a decree-holder's appeal. The suit in which the decree was passed, was based on a mortgage. The preliminary deoree was passed on the 4th of May 1908. As on this date the new Code of Civil Procedure had not come into force the decree was passed under Section 88 of the Transfer of Property Act. The final decree was obtained by the decree-holders on the 19th of August 1909, when the new Act had come into force. The last application for execution was presented after the expiry of 12 years from 19th August 1909. The question, therefore, arises whether this last application would be governed by the old Code of Civil Procedure or by Act V of 1908. If the old Code governed the case, he 12 years' limitation would not apply because the decree in the case is a mortgage-decree. If the new Code applies the application would be barred by time.

2. The learned Counsel for the appellants relies on the case reported in Kousilla v. Ishri Singh 6 Ind. Cas. 188 : 32 A. 499 : 7 A.L.J. 420. But in that case both the decrees under Sections 88 and 89 of the Transfer of Property Act had been passed before the new Code of Civil Prooedure came into force, In the case before us the only decree that is executable was passed under the new Code of Civil Procedure and, therefore, the rules of procedure laid down in that Code should apply.

3. The decree of the Court below seems to be right and the appeal is dismissed with costs including in this Court fees on the higher scale.


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