1. This appeal arises out of proceedings in execution of a decree.
2. It appears that the decree-holders obtained a mortgage decree for Rs. 43,000 odd on the 25th July 1898. The mortgage-decree not only directed the sale of the mortgaged properties but also provided that 'if the whole decretal amount be not satisfied with the purchase-money obtained at the said auction-sale, then the balance remaining due be realised from the other properties of the judgment-debtors.' Some of the mortgaged properties were sold in 1397 and others in 1907 and a portion of the decretal amount was realised. On the 15th January 1910 an application was made for a personal decree under Section 90 of the Transfer of Property Act for about Rs. 11,000 and a decree was accordingly made under that section. Since that date and previous to the present application, there were two applications for execution, one in the year 1913 and the other in 1915, but nothing was realised in those execution cases. On the 12th September 1918 the present application for execution was made. Objection was raised by the judgment-debtor on the ground that 12 years having elapsed from the date of the original decree dated the 25th July 1396, the present application for execution is barred by limitation. The learned Subordinate Judge has allowed the objection, relying on the two cases mentioned in his order, and the decree-holder has appealed to this Court.
3. There is no doubt that if the 12 years is to be counted from the date of the original mortgage decree dated 25th July 1896, the present application is barred under Section 48 of the present Code of Civil Procedure. It is also true, as stated above, that the original mortgage-decree contained a provision for sale of other properties in the event of the sale of the mortgaged properties proving insufficient to satisfy the decree. A personal decree under Section 90 of the Transfer of Property Act, however, was passed on the 15th January 1910 and it was passed after notice to the judgment-debtors. Whether it was necessary or not, the decree must be held to be valid and binding so far as the parties to it are concerned, as it was never set aside on appeal or otherwise. So far as the parties to it are concerned, the personal decree must be taken to have been passed on the 15th January 1910, which is within 12 years of the present application.
4. The orders on the two previous applications for execution also stand in the way of the judgment-debtors and no objection appears to have been raised by them to the execution on the ground of a personal decree having been passed in 1896.
5. The learned Subordinate Judge has relied on the case of Dina Nath Mitter v. Bejoy Krishna Das 7 C.W.N. 744. In that case, the mortgage decree itself provided also for a personal decree, but it appears that the decree holders applied for execution of the decree against properties other than the mortgaged property and realised money in execution. When the decree-holders applied for execution for the third time, it was then that the judgment-debtors raised the objection that the execution could not be proceeded with unless a decree were obtained under Section 90 of the Transfer of Property Act. Thereupon the decree-holders made an application for a decree under Section 90 and the Court made such a decree. On appeal against that decree this Court held that no supplemental decree under Section 90 was necessary to be made where the original decree provided for a personal decree. It is to be observed that the question there arose on appeal against the decree under Section 90 itself, and it was pointed out by the learned Judges that the previous proceedings in execution could only have been taken and were only taken on the footing that there was a personal decree against the judgment-debtor for the whole of the mortgage debt.
6. In the present case, as stated above, the decree under Section 90 was not appealed against, nor sought to be set aside and, therefore, it became final.
7. In the other case relied noon by the learned Subordinate Judge, viz., that of Jaimangalbati Misrain v. Badan Chand Das 19 Ind. Cas. 899 (Miscellaneous Appeal No. 63 of 1911 decided on the 6th May 1913), the decree was a combined decree for sale and a personal decree. The decree-holder took cut execution and had the mortgaged property sold. An application under Section 90 of the Transfer of Property Act was refused on the ground that as the original decree embodied a personal decree, no separate decree could be drawn under Section 93. As a matter of fact, the decree was executed as a personal decree within 12 years of the original decree and when it was again sought to be executed after the expiry of 12 years, it was held, having regard to the provisions of Section 43, Civil Procedure Code, that the application for execution was barred, although the mortgage decree was passed before the present Code came into operation, and that the provisions of the new Code would apply if the application for execution was made after the passing of the new Code.
8. The two cases relied upon, therefore, are distinguishable. We are of opinion having regard to the circumstances of the present ease, that the personal decree must be taken to have been passed on the 25th January 1910, and that the application for execution, therefore, is not barred by limitation.
9. The order of the lower Court is accordingly set aside and the case sent back to that Court in order that the execution case may be proceeded with.