1. This revision petition arises out of an order under Section 44 of the Madras Hindu Religious Endowments Act. The petitioner was the first respondent in the lower Court. Under a settlement deed dated 10th December, 1926, he acquired certain property and by the same settlement deed a charge was created in favour of the temple now represented by the contesting respondent for an annual payment out of the income of the land of 11/3 kottahs of paddy worth at that time approximately Rs. 18. The charge was to come into operation on the death of the settlor who died in 1935. The charge was not enforced by the temple until the present proceedings began. Meanwhile, the present petitioner in May 1938, usufructuarily mortgaged the property to the second respondent herein and the third respondent in the Court below, and on 26th May, 1942, he sold the property to the third respondent in the Court below subject to the usufructuarily mortgage. On 14th November, 1942, the present petition was filed to recover the expenditure incurred by the temple in the object contemplated in the charge from 26th February, 1938.
2. The main contention argued before me is that the application was barred by limitation. At any rate so far as the petitioner is concerned, it is urged that Article 181 of the Limitation Act governed the claim. It was however held by the lower Court that Article 181 had no application since the operation of this Article is confined only to applications under the Code of Civil Procedure. In revision, my attention has been drawn to the decision in Sambasiva Mudaliar v. Panchanatha Pillai (1907) 17 M.L.J. 441 : I.L.R. Mad. 54 which applied Article 178 of the Limitation Act corresponding to the present Article 181 to an application under Section 40 of the Revenue Recovery Act, but this decision expressly proceeds on the basis that the application was in reality one under the Code of Civil Procedure which was invoked by the provisions of the Revenue Recovery Act. The decision has been so explained in Durayya Solagan v. Venkatarama Naicker (1920) 12 L.W. 535 which restated the well established rule that Article 181 does not apply to applications other than those under the Code of Civil Procedure. On behalf of the petitioner reliance is also placed on the decision of a single Judge of the Lahore High Court in Hussain Baksh v. Secretary of State A.I.R. 1935 Lah. 982 where Article 181 was applied to an application under Section 16 of the Indian Telegraph Act. The learned Judge does not consider the question whether Article 181 can be applied to applications under Special Acts, and with great respect I have little doubt that the decision in question would not be held to be good law in this High Court. It seems to me that the view of the learned District Judge is correct that this application is in effect an application to enforce a charge and that it is filed as an application rather than as a suit by reason of the special procedure laid down in Section 44 of the Madras Hindu Religious Endowments Act and that the limitation applicable thereto would be the period of limitation applicable to a suit for the same relief, that is to say, under Article 132. I hold that the application is not barred by limitation.
3. The petitioner apprehends that under the form of the decree he might be held personally liable for the amount which accrued due under the charge during the period for which he was in possession of the property. No doubt, the decree does not contain an express clause that neither the first respondent nor the second respondent would be liable to be arrested for default, from which it might be inferred that their personal properties other than the charged property might be proceeded against in, the event of any deficiency on the sale of the charged property. It is however quite clear from the penultimate sentence of paragraph (12) of the judgment that none of the respondents are personally liable for the claim, and it follows that the final decree should provide in default of payment for the realisation of the claim from the charged property and that there should be no personal decree either against the respondents or their individual property.
4. With these observations, the revision petition is dismissed with costs of the first respondent.