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C. Balaji Rao Sahib Vs. Harirama Chetty - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai
Decided On
Judge
Reported in32Ind.Cas.39
AppellantC. Balaji Rao Sahib
RespondentHarirama Chetty
Cases ReferredMahammad Husain Saib v. Abdul
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rules 4 and 5 - mortgage-decree passed before the new code--final decree, whether necessary before execution--application for execution within 12 years of decree--limitation act (ix of 1908), schedule i, article 182. - .....then there was a second application in 1906 and a third application in 1908 and after the new civil procedure code came into force, an application was made on the 18th april 1911. there were some more applications thereafter, one on the 4th july 912, another on the 22nd october 1912, the last one being on the 8th may 1913.2. the question raised before us by the learned vakil for the appellant is whether the effect of order xxxiv, rules 4 and 5, of the new civil procedure code is that the decree-holder must apply for a final decree under the provisions of the new code before there can be any execution. the decree in the case was made long before the passing of the new code and there had also been several applications in execution before the code came into force. the contention of the.....
Judgment:

1. In this case, the decree, execution of which is sought, is dated 7th November 1902. It appears that the first application for execution was made on the 7th July 1905. Then there was a second application in 1906 and a third application in 1908 and after the new Civil Procedure Code came into force, an application was made on the 18th April 1911. There were some more applications thereafter, one on the 4th July 912, another on the 22nd October 1912, the last one being on the 8th May 1913.

2. The question raised before us by the learned Vakil for the appellant is whether the effect of Order XXXIV, rules 4 and 5, of the new Civil Procedure Code is that the decree-holder must apply for a final decree under the provisions of the new Code before there can be any execution. The decree in the case was made long before the passing of the new Code and there had also been several applications in execution before the Code came into force. The contention of the appellant's learned Vakil amounts to this: that what was originally a decree executable under the ordinary process of execution must, l:y reason of the new enactment, i.e., the Civil Procedure Code of 1908, be taken to have ceased to become executable. There is nothing in the language of the rules to which we have been referred which expressly says that mortgage decrees passed before the new Code came into operation must be regarded in the nature of preliminary decrees and that, therefore, it would be necessary to have a final decree passed before there can be any further execution. If we acceded to the arguments of the appellant's Vakil, the result would be that what was originally a decree capable of being executed would cease to be executable and that is, not a position which we should give effect to unless we were compelled to do so by the express language of the Code. Section 48 of the new Code lays down that a decree shall remain in force for 12 years and we may, therefore, take it that this decree is still in force. That being so, the fact that the application that was made after the new Code came into operation did not pray expressly for a final decree but asked for execution, could not affect the decree which was already in force and alter its nature. This point is not explicitly covered by any of the decisions that we have been referred to, though, in several of the cases cited before us, there are expressions of opinion which support the view we have taken. It will be sufficient to refer to the case of Mahammad Husain Saib v. Abdul karim Saib 29 Ind. Cas. 237; 17 M.L.T. 424. This is a recent decision wherein it was laid down that to a case of this nature Section 48 of the new Civil Procedure Code applies and that the decree-holder would be entitled to get an order absolute for sale within a period of 12 years from the date of the decree. We are of opinion that Article 182 of the Limitation Act, and not Article 181 as contended for the appellant, governs the case and as the application for execution in question was made within 12 years of the decree and 3 years of the last application it was rightly granted. The appeal is dismissed with costs.


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