1. The two questions raised for our decision in this case are (1) whether an appeal lay to the lower appellate court and (2) whether M.P. No. 178 of 1912 contains a sufficient acknowledgment under Section 19 of the Limitation Act to give a fresh starting point for 1st respondent's application.
2. The 1st plaintiff sued to recover the amount due to him under a simple mortgage bond by sale of the property mortgaged. On 27th October 1910 a preliminary mortgage decree was passed in his favour giving defendants time till 27th April 1911 to pay the amount found due. Money was not so paid and the present application from which the C.M.S.A. before us arises was filed by the 1st respondent on 16th September 1914 under Order 34 It. 5, Clause 2 for a final decree for sale. The first court dismissed the application as barred by limitation under Article 181 of the Limitation Act. On appeal the lower appellate court reversed that order and has passed a final decree. The 1st defendant has appealed to us against that decision.
3. On the 1st question raised, the appellant is right in his contention that the order cannot be treated as one under Section 47, Civil Procedure Code in execution of the preliminary decree. It is an order in the suit itself. The effect of the order is to dismiss the plaintiffs' suit so far as it prayed for the realisation of the mortgage money by sale of the mortgaged property. It is a final adjudication on that part of the plaintiffs' case so far as the Munsif's court is concerned and therefore falls within the definition of 'decree'' under Section 2 C.P. Code. A formal decree was drawn up by the Munsif dismissing the petition but it did not expressly dismiss the suit for sale. This, however, seems immaterial as the effect of the order was to so dismiss. In Suppy Nayakan v. Perumal Chetti : (1916)30MLJ486 . this Court held that an order declaring that a suit had abated because the legal representative of the deceased defendant had not been brought on record in time was a decree and appealable as such, though no formal decree dismissing the suit had been drawn up. The principle of that decision applies to the present case. If the plaintiffs' application had been allowed by the Munsif and a final decree passed, there can be no doubt that an appeal would have lain against it. It would be an anomalous position if we were to hold that an appeal dues not lie where the application is refused. The ruling of the Full Bench of the Allahabad High Court in Madho Ram v. Nihal Singh I.L.R. (1916) A. 21 shows that appeals are allowed in that province from such orders, as appeals from decrees in suits. We think that is the right view and that the appeal to the lower appellate court was a competent one under Section 96 of the Civil Procedure Code.
4. On the question of limitation it is now settled that Article 181 applies to an application under Or. 34 Rule 5, Clause 2, (See Nimmala Mahankali v. Kallakuri Seetharamiah : (1917)32MLJ455 ), and it is clear that Section 19 of the Limitation Act also applies. The question then to be decided is whether there is a sufficient acknowledgment in the present case. M.P. No. 178 of 1912 relied on by the plaintiffs as containing the necessary acknowledgment was put in by the mortgagor for obtaining an adjournment of the sale of the mortgaged properties in court auction. It should be explained that at one stage of the proceedings in this suit the court has treated the 1st decree as an executable decree and had ordered sale of the properties. It was during the time that this view was in force, that M.P. No. 178 of 1912 was filed. Subsequently the court ruled that a final decree should be obtained before execution and that order has now become final between the parties so that no question about the executability of the 1st decree itself having become res judicata, arises. In M. P. No. 178 of 1912 the 1st defendant says 'The date of sale in auction has been fixed for the 17th of this month. I have applied for extension of time till the re-opening of the court to pay to the plaintiff the decree amount. Plaintiff has also consented. I pray that the court may be pleased to pass orders directing that the auction to be held on the 17th instant may be stopped and the sale may be adjourned till the re-opening of the court without issuing any further sale proclamation.' There can be no doubt that the mortgagor clearly acknowledges by it, plaintiffs' right to the decree amount and their right to realise it by sale of the suit properties. Appellant's Vakil however urges that such an acknowledgment is not sufficient to save the present application and that the acknowledgment must expressly be of the right to apply for a final decree and he relies on Andiappa Chetty v. Devarajulu Naidu : (1911)21MLJ1024 . Under Section 19 the acknowledgment of liability must be 'in respect of the right' in respect to which the application is made. What then is that right in the present case? Is it the right to apply for a final decree as appellant contends or the right to realise the decree amount by sale of the, mortgaged properties through court as the respondent argues? The substantial right the plaintiff has is the latter: his application to court is only for obtaining a final decree to enable him to enforce that right. The Privy Council has laid down in Sukhamoni Chowdhrani v. Ishan Chunder Roy I.L.R. (1898) Cal. 844 'that it is not required that an acknowledgment within the statute shall specify every legal consequence of the thing acknowledged.'' Similarly the right to take legal steps for enforcing the right itself need not be expressly acknowledged if the right itself is acknowledged. The language of Section 19 is clear on the point that the right itself should be acknowledged and not the right to apply. In Venkatrav Bapu v. Bijesing Vithalsing I.L.R. (1885) Bom. 108 an application for the postponement of a sale under a mortgage decree, which said the mortgagor would pay the amount of the decree, was held to contain a sufficient acknowledgment to give a fresh starting point for the plaintiff's subsequent application to execute the decree, The only difference between that case and the present one is that here the application is to get a final decree before applying for execution. This does not seem to be a material difference in this connection. The acknowledgment of plaintiff's right to sell the properties in court auction involves an acknowledgment of their right to get the final decree for the purpose.
5. We think the Subordinate Judge is right in holding that there was a sufficient acknowledgment in this case. The respondents' Vakil has not attempted to support the Subordinate Judge's view on the question of waiver and on the question of previous execution-applications giving fresh starting points for limitation under Article 181, which are obviously wrong. His decree is however right and this appeal must be dismissed with costs.