1. The lower Court's conclusion against the appellant is not sustainable, in so far as it is based on the suspension of respondent's right to execute during the Court of Ward's possession of the former's estate. The first period of that possession was not long enough, if excluded from the computation, to justify respondent's delay; and the second, during which (it is agreed) the decree was not transferred to the Collector for execution, cannot be excluded. Kumara Venkata Perumal v. Velayuda Reddi 24 Ind. Cas. 195 : 27 M.L.J. 25.
2. Respondent has then urged that he is entitled to execute within 12 years from the date on which he obtained personal decree against the appellant, and that the lower Court should be called on to deal with the application on that footing. The lower Court did not sonsider this at the hearing before it, because it had another ground of decision, in its own opinion satisfactory. In these circumstances we think that respondent should not be debarred from relying on the computation of time from the date of the personal decree now.
3. The lower Court is requested to submit a finding on the issue whether the application is barred by limitation in the light of the foregoing. Fresh evidence may be taken. Finding should be submitted within six weeks and seven days will be allowed for filing objections.
4. In compliance with the order contained in the above judgment, the District Judge of North Arcot submitted the following.
5. Finding.--1. The High Court requires a finding in Execution Petition No. 88 of 1912, 'whether the application is barred by limitation.' This Court took on file the said application, holding that it was not barred, when the period that the Court of Wards held charge of the judgment-debtor's estate was excluded, by the 12 years' rule of Section 48, Civil Procedure Code. The judgment-debtor is the appellant.
6. 2. In the High Court it was apparently argued that the decree-holder should be allowed to make his Computation of time from the date of the personal decree. There has not, however, been any separate personal decree in the suit (Original Suit No. 6 of 1890). The decree directs, first, the sale of the mortgaged property and then proceeds that the defendant be personally liable for any balance not obtained by such sale.' The mortgaged property was sold on 24th July 1893 and the sale confirmed on 26th September 1893. The decree-holder argues that until the mortgaged property had been disposed of he was not at liberty to proceed further, and that, therefore, the portion of the decree which was against the person was not executable until 26th September 1893. He, therefore, argues that he should be allowed to reckon the 12years allowed to him under Section 48, Civil Procedure Code, from that date.
7. 3. As regards the period to be excluded on account of the transfer to the Court of Wards, my predecessor allowed six years and seven months. The date of the notification in the Fort Saint George Gazette was 1st August 1899, and the decrees were re-transferred to this Court on 27th February 1906. The period is, therefore, correct within a day or two, and no objection was previously taken to this. The High Court has decided already that this first period should be allowed, and that the second period during which the Court of Wards held charge of the estate should not be allowed; so there is nothing further to discuss on this point.
8. 4. The decree-holder, therefore, claims time up to 26th April 1912, on which date this Court had already closed for the annual recess. The exeeutiou application now in question was filed on 24th June 1912, the day the Court re-opened after the recess, and it is, therefore, said to be in time.
9. 5. For the judgment-debtor, it was argued that as there was no separate personal decree there was no case. I do not read the order of the High Court in this sense. It would certainly appear that it was re-presented to the Court that there was a separate personal decree, but the order is in general terms. I consider that it applies to the personal decree embodied in the original mortgage-decree.
10. 6. The only question which I have to consider is, whether I am to follow the ruling in Narhar Raghunaih Naphad v. Krislinaii Govind that Section 48 of the Civil Procedure Code applies only to a decree executable at the date it was passed, and that if it is not so executable, there is 12 years' limitation from the date it becomes executable. It is admitted in the present case that the personal portion of the decree was not executable until 26th September 1893. For the decree-holder it is argued that this Court should follow that decision. For the judgment-debtor reliance is placed upon the Calcutta case of Jaimangalbati Misrain v. liadan Ohand Das 19 Ind. Cas. 899 in which the decree was a combined decree for sale and personal decree, as in the present case. The Calcutta High Court held that the decree-holder had only 12 years from the date of the original decree. Although the date of this decision is later than the Bombay case, the latter was not mentioned by their Lordships. The decision in Janendra Natli Base v. Khulna Loan Go. Ld. 24 Ind. Cas. 35 : 18 C.W.N. 492 is another similar case more recently decided, in which the Calcutta High Court have specifically held that the 12 years run from the date of the original combined decree, and not from the date of sale of the mortgaged property.
11. 7. In a recent appeal from this Court in Venkatamma v. Manikkam Nayani Varu 26 Ind. Cas. 244 : 16 M.L.T. 399 their Lordships of the Madras High Court have considered the Bombay case, though it was not then necessary to make a decision on the point. Mr. Justice Sadasiva Aiyar appeared Very doubtful but said he would feel inclined to follow it (the Bombay decision), if it was necessary to do so in the case in hand, but Mr. Justice Napier had still greater doubts as to the greatness of construction of Section 48, Civil Procedure Code.
12. 8. I feel that it is hardly for me to discuss the question when, the superior Courts are differing, but unless and until the Madras High Court determines otherwise I shall, without hesitation, follow the Calcutta High Court. My finding, therefore, is that the application is barred by limitation.
13. This case again coming on for hearing yesterday and this day the Court delivered the following.
14. Judgment.--The lower Court's finding is that execution of the decree is barred.
15. There is no doubt that, though there is no separate personal decree, a personal decree is included in the terms of the decree under execution, which permit plaintiff to recover from defendant personally any balance not obtained by the sale' of the mortgaged property.
16. Authority is unsettled as to the portion of Section 48 applicable to such a decree, Narhar Raghunath Naphad v. Krishnaji Govind 15 Ind. Cas. 822 : 36 B.P 36 : 14 Bom. L.E. 381 being relied on by plaintiff as justifying the view that the twelve years' period runs from the date on which the particular provision in the decree in question becomes executable, and Jaimangalbati Misrain v. Badan Gkand Das 19 Ind. Cas. 899 and Jnanendra Nath Bose v. KJiulna Loan Go. Ld. 24 Ind. Cas. 35 : 18 C.W.N. 492 by defendant as showing that the twelve years' period must be applied to the decree from the date on which it was passed. The effect of the only decision of this Court which calls for mention, Venkatamma v. Manikkam Nayani Varu 26 Ind. Cas. 244 : 16 M.L.T. 399 is indecisive. We think it sufficient that the decree before us was never at any time, after it was passed, inexecutable and that it did not provide for the payment of any money by defendant on a certain date. In veiw of these facts we apply Section 48 (1) (a) and hold that execution is barred. The result is that the appeal is allowed and the execution petition dismissed with costs throughout.