1. The learned District Judge has dismissed the execution application No. 3 of 1909, on the grounds (a) that it was barred by limitation because the prior application No. 11 of 1906, was not an application for execution in accordance with law, because this prior application wrongly prayed for attachment of non-mortgaged properties before the mortgaged properties Were brought to sale and (6) that this same prayer repeated in the present, petition, No. 3 of 1909, cannot be legally granted as the decree obliges the decree-holder to bring the mortgaged properties to sale in the first instance and allows him to proceed against the other properties only for the balance of the decree amount (if any).
2. As regjards the 2nd ground the appellant's (decree-holder's) learned Vakil relied on certain Allahabad cases especially Pirbhu Narain Singh v. Amir Singh I.L.R. (1907) A. 369 for his contention that the mortgagee and decree holder was entitled to abandon his claim under the decree to bring the mortgaged properties to sale and on such (sic) to apply for execution in the first instance against the other properties. Even if Pirbhu Narain Singh v. Amir Singh I.L.R. (1907) A. 369 is not distinguishable as relating to an application under Section 90 of the Transfer of Property Act we think we are bound by the decision in Kamti Ramaji v. Chidivialla Ramamurthi Pantulu Garu (1907) 3 M.L.T. 365 In that case the earned Judges (Miller and Munro JJ.) held that the question in execution proceedings is 'what does that decree' (the decree sought to be executed)' direct ?' We are of opinion that the decree must be construed as requiring the decree-holder to exhaust his remedy against the mortgaged property before he can commence proceedings against the 1st Defendant or the other property referred to. The decree cannot be construed as giving the decree -holder the right of abandoning his claim against the mortgaged property to create a necessity to proceed against other property. The case in Damodar v. Vyanker I.L.R. (1906) B. 244 also prohibits attachment of other (sic) ties till the mortgaged properties are sold as directed by the decree
3. But we think that this is a fit case where we should allow the petitioner to amend his application by praying for sale of the mortgaged properties in execution as there is nothing to show that he did not believe in good faith that he was entitled to pray for attachment of properties other than the mortgaged properties. The contention of the appellant's learned Vakil that an order passed in 1898 in a prior execution petition allowing him to attach other property is resjudicata cannot be accepted, as there is nothing to show that that order was passed after notice to the judgment debtors and after giving the latter an opportunity to contest it. See Ramasami Naik v. Ramasami Chetty I.L.R. (1907) M. 255 Hence the petitioner unless he is allowed to amend his application might be barred by the 12 years rule and we allow him to so amend it in this Court within two weeks of this date.
4. The Lower Court was, in our opinion in error in having decided that E.P. No. 11 of 06 is not an application in execution in accordance with law or to take a step in aid of such execution. The Petitioner prayed also in that petition for the legal representative of the 1st Defendant to be brought in and even if it contained errors in the matter of the proper reliefs etc it is sufficient to give a fresh starting point for limitation provided it was itself not barred by limitation.
5. We think that the principles of the decisions in Mahalinga Mooppanar v. Kuppanachariar I.L.R. (1907) M. 541 Kamakshi Pillai v. Ramasami Pillai (1907) 18 M.L.J. 14 Ramayyan v. Kadir Bacha Saib I.L.R. (1907) M. 68 and Appaiyar v. Dharani Mudali (1906) 17 M.L.J. 475 are more binding on us than the case of Munawar Hussain v. Jani Bijai Skanker I.L.R. (1905) A. 619 quoted by the Respondent's learned Vakil.
6. In the result we direct that on the appellant's amending in 2. Weeks the Execution Petition No. 3 of 1909 by praying for sale of the mortgaged properties, the lower Court's order be set aside and. the petition No. 3 of 09 be reheard by the District Court to decide the question whether E.P. No. 11 of 1906 was itself filed beyond the time allowed by law for an execution application and also to pass fresh orders having regard to the above remarks. If the application is not amended the appeal will stand dismissed. In any event the appellant will pay the Respondent's costs in this Court.