Rampini and Pratt, JJ.
1. This is an appeal against the judgment of the Subordinate Judge of Bhagulpore, dated the 2nd of June 1898.
2. The order of the Subordinate Judge was passed on an application for execution of a decree. The decree in question was dated the 26th February 1880; and it was a consent decree passed in a suit brought upon a mortgage. The decree directs that the decretal money be recovered by sale, in the first instance, of the mortgaged properties which have not been exempted, and afterwards from the persons and other properties of the defendants.
3. The judgment-debtors in this case have contended that the decree is barred by limitation.
4. The Subordinate Judge has overruled this plea, and has ordered that execution should proceed.
5. Before us two pleas have been urged, namely, first, that the present application is barred under the three years' rule laid down in Article 179 of the Limitation Act; and, secondly, that it is barred by the 12 years' rule in Section 230 of the Code of Civil Procedure.
6. The present application was made on the 5th of November 1897, and the previous application on the 26th of February 1894. The Subordinate Judge has, however, held that the present application is saved by the applications made on the 5th, 7th and 27th of November 1894, which, in his opinion, were applications made to take steps in aid of execution.
7. The pleader for the appellant contends, in the first place, that the Subordinate Judge is wrong in regarding these applications as applications to take steps in aid of execution. We think he is wrong with regard to the applications of the 5th and 7th of November 1894, because these applications were applications for time, which did not further the execution of the decree, but rather retarded it. The application of the 27th of November, however, was an application for review of an order passed upon the 7th, striking off the execution case, and it prays that it be restored to the file. In these circumstances, in our opinion, it is undoubtedly an application to take a step in aid of execution; and therefore the present application seems to us to be saved by the application of the 27th of November.
8. As to the plea urged by the pleader for the appellant in respect of Section 230 of the Code, we would say that although this, the present application, is no doubt beyond the period of 12 years from the date of original decree, yet that decree appears to us not to be a decree for payment of money or for delivery of property. Therefore execution of this decree is not barred by the rule in Section 230. In support of this view we may cite the cases of Ram Charan Bhagat v. Sheobarat Rai (1894) I.L.R., 16 All, 418, and Fazil Howladar v. Krishna Bundhoo Roy (1897) I.L.R., 25 Cal., 580. There is no doubt a ruling of the Madras High Court to the contrary effect; see the case of Kommachi Kather v. Pakker (1896) I.L.R., 20 Mad., 107. But we are, of course, bound to follow the ruling of this Court.
9. The learned pleader for the appellant has called our attention to the case of Fakeer Buksh v. Chutterdharee Chowdhry (1870) 14 W.R., 209: 12 B.L.R., 513, note, which has been followed in a later case of Purmessuree Dossee v. Nobin Chunder Tarun (1875) 24 W.R., 305. We, however, think that these rulings do not apply to the present case. It would seem that in the case Fakeer Buksh v. Chutterdharee Chowdhry (1870) 14 W.R., 209: 12 B.L.R., 513, note, the plaintiff waived his right as mortgagee, sued for the money due on the bond, and got a decree for the money. The present applicant did nothing of the kind. He got on the 26th February 1880 a mortgage decree, and nothing else but a mortgage decree, and he did not get a decree for payment of the balance due on the amount, after realizing what he could from the property until the 5th July 1888.
10. The pleader for the appellant contends that there was no decree passed then. That may be so; but there appears to have been an order to the effect that the judgment-debtors were bound to pay the balance of the decree, Rs. 60,000. That order seems to have the effect of a decree. But even if that be not so, then it is clear that until that order was passed, the present decree, which it is now sought to execute, was nothing but a mortgage decree. It was not converted into a money decree until that date.
11. For all these reasons we think that the decree of which execution is sought is not barred by time; and we dismiss this appeal with costs.