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Tiluck Singh Vs. ParsoteIn Proshad - Court Judgment

LegalCrystal Citation
SubjectLimitation;Property
CourtKolkata
Decided On
Judge
Reported in(1895)ILR22Cal924
AppellantTiluck Singh
RespondentParsoteIn Proshad
Cases ReferredBaimanekbai v. Manekji Kavasii I.L.R.
Excerpt:
limitation act (xv of 1877), schedule ii, article 178 - transfer of property act (iv of 1882), section 89--application for an order absolute for sale of mortgaged property. - .....and it was there held that that article was limited to applications made under the code of civil procedure. the learned chief justice proceeds: 'an examination of all the other articles in the second schedule, relating to applications, that is to say, of the third division of that schedule, shows that the applications therein contemplated are such as are made under the civil procedure code. hence, it is natural to conclude that the applications referred to in article 178 are applications ejusdem generis, i.e., applications under the code of civil procedure. the-preamble of the act, moreover, purports to deal with certain applications only and not with all applications.' the judgment of the allahabad high court, to which reference has been made, is also to a similar effect. in.....
Judgment:

Prinsep and Ghose, JJ.

1. This is a matter relating to the execution of a decree on a mortgage passed under the Transfer of Property Act. It seems that an application for execution of that decree was made and abandoned, and again renewed, without the plaintiff having obtained an order under Section 89 for the sale of the mortgaged properties. On the second application to execute, the mortgagor, judgment-debtor, objected that the decree could not be executed without such an order, and he succeeded in getting the application to execute dismissed on this ground. On this, the mortgagee has applied to have his decree made absolute by an order for sale of the mortgaged properties. The objection was renewed by the mortgagor on the ground that more than three years have passed since the original decree, and that, therefore, the application now made was barred by Article 178, Schedule II of the Limitation Act of 1877. Both the Courts have overruled this objection and have concurrently given the mortgagee the order that he desires. They have both proceeded on the judgment of the Allahabad High Court in the case of Ranbir Singh v. Drigpal I.L.R. 16 All. 23, which followed the judgment of the Bombay High Court in the case of Baimanekbai v. Manekji Kavasii I.L.R. 7 Bom. 213. In both these cases, the object of Article 178 was considered. In the Bombay case it was sought to apply Article 178 to an application for probate or letters of administration, and it was there held that that article was limited to applications made under the Code of Civil Procedure. The learned Chief Justice proceeds: 'An examination of all the other articles in the second schedule, relating to applications, that is to say, of the third division of that schedule, shows that the applications therein contemplated are such as are made under the Civil Procedure Code. Hence, it is natural to conclude that the applications referred to in Article 178 are applications ejusdem generis, i.e., applications under the Code of Civil Procedure. The-preamble of the Act, moreover, purports to deal with certain applications only and not with all applications.' The judgment of the Allahabad High Court, to which reference has been made, is also to a similar effect. In that case, as in this, the application related to an order for sale under a decree passed on mortgage. Mr. Justice Burkitt, after following the judgment of the Bombay Court, pointed out that the Limitation Act was enacted some years before the passing of the Transfer of Property Act, and he says: 'I cannot find, nor has my attention been called to any rule of limitation aliunde which could be applied to an application under Section 89 of the latter Act. I am accordingly obliged to hold that there is no limitation rule under which the application made by the appellant in March 1890 can be considered to fall.' We approve of the view taken in both these judgments of Article 178, and agree that it should be limited to applications under the Code of Civil Procedure. The result, therefore, is that an application, such as that now before us, is not, governed by any limitation. We do not, however, mean to say that, in dealing with such matters, the Court will not be guided by considerations as to whether any delay on the part of the mortgagee has not been unreasonable,, so as to bring it within the rules applied in such cases by Courts of Equity. We may further observe that no final order for sale having been passed this suit may properly be regarded as being still pending. The appeal is, therefore, dismissed with costs.


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