1. This is an appeal against an order of the Additional District Judge of Jessore, passed in an execution case.
2. He held that the decree-holder was entitled to execute a decree passed in his favour on the 7th September 1894. The decree-holder's application for execution was made on the 15th November 1904, i.e., admittedly out of time. But the decree-holder contended that execution of his decree, which was a mortgage decree, was saved from the bar of limitation by applications under Section 90 of the Transfer of Property Act made on the 3rd January 1899, 4th December 1901 and 19th June 1903. It is conceded that, if these applications do not save execution from being barred by limitation, the present application for execution is long out of time.
3. The Additional District Judge held that these applications do save execution from being barred, and he has done so on the authority of the ruling in Dina Nath Mitter v. Bejoy Krishna Das (1903) 7 C.W.N. 744, in which it has been laid down that it is unnecessary to apply under section. 90 for a supplemental decree when the decree as in this case gives power to proceed against the person of the mortgagor, as well as against the mortgaged property and that the decree-holder made these applications in good faith under the impression that the mortgaged property had been sold free of incumbrances and that these applications were necessary to protect his interests.
4. The judgment-debtors appeal. On their behalf it is contended that the Judge is wrong in this particular case, because the sale of the mortgaged property was set aside on the 5th June 1897, and so the decree-holder was bound to proceed against it in the first instance, and that whether supplementary decrees under Section 90 are required or not, applications for such decrees do not save limitation, not being applications in execution, but applications for supplemental decrees.
5. On behalf of the respondent it is, however, urged that applications for decrees under Section 90 are applications in execution. and the rulings of the Allahabad High Court in Durga Dai v. Bhaguat Prasad (1891) I.L.R. 13 All. 356, Ramsrup v. Ghaurani (1899) I.L.R. 21 All. 453 are relied on.
6. We are unable to agree with the views of the Allahabad High Court on this point. It is clear from the decisions of this Court in Lalla Tirhini Sahai v. Latta Hurruk Narain (1893) I.L.R. 21 Calc. 26 and Dina Nath Mitter v. Bejoy Krishna Das (1903) 7 C.W.N. 744 that decrees passed under Section 90 of the Transfer of Property Act, whether they may in any particular cases be required or not, are supplemental decrees and are separate and distinct from the original decree. On this view it is impossible to regard applications for decrees under Section 90 as applications in execution of the original decree.
7. Moreover, as the sale of the mortgaged property in this case had been set aside on the 5th June 1897, the decree-holder was not justified in subsequently applying for supplemental decrees under Section 90. He may have done so in good faith, but on a mistaken view of the facts. Hence on the authority of the ruling of the Allahabad High Court in Munawar Husain v. Jani Bijai Shankar (1905) I.L.R. 27 All. 619 they cannot be held to be applications in accordance with law to do something in aid of execution. In the judgment in that case it is said: 'Applying in accordance with law means applying to the Court to do something, which by law that Court was competent to do. It does not mean applying to the Court to do something which either to the decree-holder's direct knowledge of facts or his presumed knowledge of law he knew that the Court was incompetent to do.'
8. Hence the application for execution of the decree in this case would seem to be time-barred. We accordingly decree this appeal with costs.
9. The substantial question of law which calls for decision in this appeal is whether the application presented by the respondents for execution of a decree is barred by limitation. The facts, so far as it is necessary to state them for the determination of this question, are not open to any doubt or dispute. On the 7th September 1894 the respondents obtained a decree in a mortgage suit, which was made absolute en the 23rd May 1896. On the 18th September 1896, the decree-holders presented a petition for execution, and in the course of the proceedings thus instituted, the mortgaged properties were sold on the 19th January 1897. The sale was, however, set aside on the 5th June 1897 for reasons, which it is unnecessary to state for the purposes of this appeal. On the 3rd January 1899 the decree-holders presented a second application for execution. Meanwhile, the mortgaged properties had apparently been sold in execution of a decree for arrears of rent due to the superior landlord. The mortgagees, decree-holders, assumed that the properties had passed freed from their lien and could not be followed. They allowed, therefore, their application for execution to be dismissed for default on the 14th April 1899, and on the same date made an application for a personal decree under Section 90 of the Transfer of Property Act. This application also does not appear to have been prosecuted. On the 4th October 1901, the decree-holders made a second application for a personal decree under Section 90. An ex-parte decree under that section was made on the 1st February 1902, and on the 20th May the decree-holders applied for execution of this decree. The judgment-debtors, however, made an application under Section 103 of the Civil Procedure Code and the ex-parte decree under Section 90 was set aside. On the 17th June 1903, the decree-holders made a third application for a personal decree under Section 90, and an order was made in their favour. Upon appeal, however, the decree under Section 90 was set aside on the 13th April 1904. On the 15th November 1904 the decree-holders initiated the present proceedings for execution of the original mortgage-decree apparently on the grounds that the sale in execution of the rent decree had not in any way affected their lien and that the mortgage decree also contained a clause which entitled them to proceed against properties of the judgment-debtors other than those included in the mortgage. The Judgment-debtors objected that the application was barred by limitation. The Courts below have concurrently held that the application is not so barred, and the correctness of this view is challenged before us on behalf of the judgment-debtors. In my opinion the contention advanced on behalf of the appellants is well founded and must prevail.
10. Under Article 179 of the second Schedule to the Limitation Act, any application for execution of the mortgage decree must be made within three years of the date of the decree or within three years from the date of applying in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree. The present application for execution is admittedly made more than three years after the date of the decree. The question therefore arises whether it has been made within three years from some other application satisfying the requirements of the 4th clause of the third column. It is argued on behalf of the judgment-debtors respondents that the applications which satisfy these requirements are (1) the applications for a decree under Section 90 of the Transfer of Property Act, and (2) the application to execute the decree under Section 90 before such decree was set aside under Section 108 of the Civil Procedure Code. In my opinion none of these applications saves limitation. Clause 4 of Article 179 requires that the application, from which the extended time is to run, must be one in accordance with law to the proper Court for execution or to take some step in aid of the execution of the decree. Explanation 2 defines the phrase 'proper Court' to mean the Court, whose 'duty it is to execute the decree. Now an application to the Court to make a decree under Section 90 is neither an application for execution nor one which invites the Court to take some step in aid of the execution of the decree. Section 90 clearly contemplates a decree for money supplemental to the decree for sale of the mortgaged properties. 'When such a decree has been obtained, it may be executed as a decree for money; but I am unable to appreciate how an application to obtain such a supplemental decree may in any sense be regarded as an application for execution of the decree for sale or an application which invites the Court to take some step in aid of execution of the decree for sale. Section 90 proceeds upon the assumption that the decree for sale has been executed and that the proceeds of the sale held thereunder have proved insufficient to pay the amount due to the mortgagee. It cannot, therefore, be contended that an application to obtain the supplemental decree, founded on the assumption that the remedies of the mortgagee under the decree for sale have been exhausted and have proved insufficient to satisfy his demands can in any sense be regarded as an. application for execution of that decree or an invitation to the Court to take some step in aid of execution of that decree. Besides, an application under Section 90 is an application in the suit. The plaintiff in his Plaint prays for a decree for sale as also for a Personal decree. The Court in the first instance gives a decree for sale and then determines, if necessary, at a subsequent stage whether the plaintiff should have also a personal decree. In making this supplemental decree the Court has to consider, if any question of limitation arises, whether the personal remedy was barred at the date of the institution of tile suit, and not whether if would be barred at the date of the application under Section 90 Miller v. Runga Nath Moulick (1885) I.L.R. 12 Calc. 389, Hamiduddin v. Kedar Nath (1898) I.L.R. 20 All. 386, and Chattar Mal v. Thakuri (1898) I.L.R. 20 All. 512. I am not unmindful that the view I take is contrary to that taken by the Allahabad High Court in Ramsarup v. Ghaurani (1899) I.L.R. 21 All. 453 where the learned Judges held that an application under Section 90 is an application in the execution of the original decree and that it is governed by Article 178 of the Limitation Act. This view is based upon the opinion expressed in two earlier cases, Durga Dai y. Bhagwat Prasad (1891) I.L.R. 13 All. 356 and Musaheb Zaman Khan v. Inayatullah (1892) I.L.R. 14 All. 513. It appears to me, however, that some of the reasons given in the latter case go to support my view. The learned Judges assented to the view of Mr. Justice Straight that Sections 88 and 90 clearly contemplated two distinct decrees, although both of them are made in one and the same suit. They further held that, although the application for a decree under Section 90 is in one sense an application in execution, it cannot be regarded as an application in the execution of the decree for sale made under Section 88. If this view be sound, as I think it is, the conclusion seems to me to be irresistible that if a question of limitation arises in relation to the execution of the decree for sale, an application under Section 90 cannot rightly be regarded either is an application in execution of that decree or an application to the execution Court to take some step in aid of that execution. The same view was taken by Judicial Commissioner Ismay in Ramdoyal v. Mahomed Ghouse (1905) 1 Nag. L.R. 143 where he pointed out that Section 90 of the Transfer of Property Act, read in conjunction with the sections which precede it, indicate that there are two distinct decrees to be passed, one under Section 88 in the suit for sale, and the other a further decree in the same suit under Section 90, upon the application of the decree-holder in accordance with the terms of that particular section. This view is also in harmony with that taken in the cases of Raj Singh v. Parmanand (1889) I.L.R. 11, 411, 486, Musaheb Zaman Khan v. Inayaullah (1892) I.L.R. 14 All. 513, and Sonatun Shah v. Ali Newaz Khan (1889) I.L.R. 16 Calc. 423. It seems to be obvious that the object of Section 90 is to obviate the necessity for a fresh suit, possibly in a Court different from that which passed the decree for sale; the proceedings founded on an application under Section 90 are a continuation of the original suit; the relationship of decree-holder and judgment-debtor created by the decree for sale is no longer of any benefit to the decree-holder, and the parties are, therefore, again practically relegated to the position of plaintiff and defendant. With, all respect for the majority of the learned Judges of the Madras High Court, who decided the case of Mallikarjunadu Setti v. Lingamurti Pantuh (1902) I.L.R. 25 Mad. 244, I am unable to assent to the view, that an application under Section 90 may be regarded as an application (for execution of the mortgage decree; that view is hardly consistent with the position maintained by Mr. Justice Bhashyana Ayyangar, that the decree under section. 90 is a decree in the suit, and that the mortgagee has to make a separate application for execution of this fresh or supplemental decree. It may be observed that there is a considerable divergence of judicial opinion upon the question of the precise character of a decree nisi under Sections 86 and 83 of the Transfer of Property Act This Court has held that an application, for an order absolute under Section 89 is not an application for an execution, so that Article 179 cannot apply [Ajudhia Pcrshad v. Baldeo Singh (1894) I.L.R. 21 Calc. 818, Akikunnissa Bibee v. Roop Lal Das (1897) I.L.R. 25 Calc. 133, and Pramatha Chandra Roy v. Khetra Mohan Ghose (1902) I.L.R. 29 Calc. 651]; nor is the application one under the Code of Civil Procedure so as to make Article 178 applicable Tihick; Singh v. Parsotein Proshad (1895) I.L.R. 22 Calc. 924. The Allahabad High Court has, on the other hand, held that the application for an order absolute is an application for execution Kedar Nath v. Lalji Sahai (1889) I.L.R. 12 All. 61, Oudh Behari Lal v. Nageshar Lal (1890) I.L.R. 13 All 278, and Baldeo Prasad v. Ibn Haidar (1905) I.L.R. 27 All. 625 although there is some divergence of opinion as to whether Article 179 applies, as held in Chunni Lal v. Harnam Das (1898) I.L.R. 20 All. 302 and Parmeshri Lal v. Mohan Lal (1898) I.L.R. 20 All. 357 or whether Article 178 applies as indicated in AH Ahmad v. Naziran Bibi (1902) I.L.R. 24 All. 542. The Madras High Court has held that an application for an order absolute is an application for execution Mallikurjunnda Satti v. Lingamurt]i Pantulu (1902) I.L.R. 25 Mad. 244 although it may be a question of some nicety to determine, in each case, whether Article 178 or Article 179 would govern the application Rungiah Gounden & Co. v. Nanjappa Row (1903) I.L.R 26 Mad. 780. The Bombay High Court seems to favour the view that an application for an order absolute is an application for execution governed by Article 179 Bhagawan v. Ganu (1899) I.L.R. 23 Bom. 614. If we adopt the view which has prevailed in this Court, viz., that an application for an order absolute under Section 89 is an application in the suit and not an application for execution, it follows necessarily that an application under Section 90 for a supplemental decree is also an application in the suit. Even if, however, the view maintained in the other High Courts as to the true nature of an application under Section 89 were adopted, it seems to me that an application under Section 90 stands upon an entirely different footing. For the reasons already stated, I must respectfully dissent from the view taken by the learned Judges of the Allahabad High Court in Ram Sarup v. Ghaurani (1899) I.L.R. 21 All. 453, and I must hold that the applications under Section 90, upon which the respondents place reliance, were not applications to the execution Court either for execution or for taking some step in aid of execution of the mortgage decree, and that consequently they are not sufficient to save the present application from the bar of limitation. It may be added that the view I have taken as to the relation between the decree for sale and the supplemental personal decree, may be supported to some extent by the analogy of the distinction, which has always been recognised between the execution of a decree for possession and a decree for mesne profits after the latter have been ascertained Puran Chand v. Roy Radha Kishen (1891) I.L.R. 19 Calc. 132 and Radha Prasad Singh v. Lal Sahab Rai (1890) I.L.R. 13 All. 53, 65 : L.R. 17 I.A. 150. This is of course subject to the observation that in the case of an application for ascertainment of mesne profits, it is expressly declared to be an application in execution under Section 244 of the Civil Procedure Code.
11. As regards the application, which was presented for execution, of the ex-parte supplemental decree subsequently set aside under Section 108 of the Civil Procedure Code, it is manifestly of no avail to the respondents. It was no doubt an application to the execution Court, but it was not an application with reference to the decree, which is now sought to be executed, and it cannot therefore be relied upon as taking the case out of the Statute of limitation.
12. There is another point of view from which the application of the respondents must be regarded as barred by limitation. They now seek to proceed upon the assumption that the original decree in the suit contained a direction for the sale of the mortgaged properties and also entitled them to proceed against the mortgagors personally without obtaining a decree under Section 90. It is not necessary to examine whether this view is well founded, but it may be added that it seems to be supported by the case of Dina Nath Mittcr v. Bejoy Krishna Das (1903) 7 C.W.N. 744 which is apparently in conflict with the earlier decision in Lall Tirhini Sahai v. Lalla Hurruk Narain (1893) I.L.R. 21 Calc. 26. Assuming, however, that this view of the decree-holders is well founded, the applications under Section 90 were not only unnecessary, but such as the Court was not competent to grant and, therefore, upon the authority of Munaicar Husain v. Jani Bijai Shankar (1905) I.L.R. 27 All. 619 could not save limitation. On the other hand, if we hold that a decree under Section 90 was necessary, as no such decree has been made, there is no personal decree capable of execution, and so far as the present application relates to the execution of the decree for sale, it is clearly barred, as no steps have been taken in respect thereof between the 3rd January 1899 and the 15th November 1904.
13. On these grounds, I agree with my learned brother that this appeal must be allowed. The order of the Court below is discharged and the application for execution dismissed with costs in all the Courts.