Rampini and Bodilly, JJ.
1. This is an appeal against an order of the Subordinate Judge of the 24-Pergunnahs passed in an execution case. The Subordinate Judge has held that execution of the decree is barred under Section 230 of the Code of Civil Procedure.
2. The decree in question is dated the 27th July 1885. It is a mortgage decree and provides for the realization of the debt due by the sale of the mortgaged properties and directs that, if the full amount of the debt is not so satisfied, then the balance is to be realized by the sale of the other properties of the judgment-debtors. This decree is, strictly speaking, not in proper form. There should, according to the Transfer of Property Act, have been first a decree under Section 88 for the sale of the mortgaged properties, and then a decree under Section 90 for the balance remaining unpaid.
3. The mortgaged properties were sold off some time in or previous to 1890. The present application is for the sale of the other properties of the judgment-debtors and was made on the 10th July 1902.
4. The Subordinate Judge has held that the mortgage decree was converted into a money decree on the 17th January 1890 and so execution is now barred, as the present application was made more than twelve years after that date. The learned pleader for the appellant endeavours to show that the mortgage decree was not converted into a money decree till the 10th October 1890, as it was on that date that the Subordinate Judge's mohurir submitted an account specifying the exact sum due from the judgment-debtors. The respondent's pleader on the other hand contends that the mortgage decree was converted into a money decree at the latest, in March 1890, for in that month orders for the attachment and sale of the other property of the judgment-debtors were passed. This would appear to be correct, so the present application is made after more than twelve years from the date when proceedings against the other property of the judgment-debtors were commenced. The pleader for the appellant next argues that the present application must he considered as a continuation of the last previous application for execution, which was presented on the 11th June 1895. He says the execution proceedings were delayed by appeals and orders for the stay of execution. But we regard this argument as untenable. The present application is an entirely distinct and different application from that of the 11th June 1895 and the execution proceedings were not carried on continuously. There ware intervals between the proceedings referred to. The present application was not made promptly on the conclusion of the last of them.
5. We have therefore to decide whether an application for execution of a mortgage decree after the expiry of twelve years from the commencement of proceedings against the other property of the judgment-debtor is barred by the provisions of Section 230, Civil Procedure Code or not.
6. It would appear to us that it is. It has been conceded by the appellant's pleader that, if the decree-holder had followed the strict provisions of the Transfer of Property Act and obtained first a decree for sale of the mortgaged property under Section 88 and then a decree under Section 90 for the realization of the balance the latter decree would have been a money decree and its execution would have been barred by the provisions of Section 230, Civil Procedure Code. It would be unreasonable and unfair then to hold that the decree-holder would be entitled to a longer period of limitation, or rather would be fettered by no period of limitation at all, by improperly obtaining a combined decree under Sections 88 and 90, contrary to the procedure of the Transfer of Property Act.
7. There is apparently only one decision against this view, viz., that of Jadunath Prasad v. Jagmohan Das (1903) I.L.R. 25 All. 541, But this decision is not binding on us, and we regret that we cannot assent to it, for in it the learned Judges, who decided it, have not noticed the fact that a combined decree under Sections 88 and 90 is one passed in contravention of the provisions of the Transfer of Property Act and that it would therefore not be just that a decree-holder by obtaining such a decree should gain an advantage, to which he would not have been entitled, if he had strictly followed the procedure prescribed by the Act. Moreover, Aikman J. in his judgment in that case has relied on two cases, in neither of which the point now discussed arose. But in the case decided by this Court, to which he has referred, viz., Kartick Nath Pandey v. Juggernath Ram Marwari (1899) I.L.R. 27 Calc. 285, one of the reasons given for holding that the execution of the decree was not barred was that the decree for the balance due after the sale of the mortgaged properties had been obtained on the 5th July 1889, that is, only nine years previously to the application for execution in that case, which had been made on the 5th November 1897.
8. Another case, viz., Fazil Howladar v. Krishna Bundhoo Roy (1897) I.L.R. 25 Calc. 580 has been cited to us. The question now under consideration was not mooted in that case. The application in that case was, 'for the realization of the mortgaged debt by sale of the mortgaged property,' It had been held by the Court below that 'so much of the decree as authorizes the decree-holder to realize the judgment-debtor out of any property of the judgment-debtor other than the mortgaged property was barred under Section 230 of the Code' and this finding was not impugned before the learned Judges, who decided that case.
9. For these reasons we agree with the Subordinate Judge in holding that the execution of the decree in this case is barred and we dismiss this appeal with ousts.