1. The only question that arises for determination in this appeal, if any appeal lies, is whether the application out of which it arises is barred by time.
2. The plaintiffs-respondents brought a suit for redemption about 14 years ago, and the Munsiff, who tried the suit, with a lamentable disregard of Section 92 of the Transfer of Property Act, 1882, directed that the plaintiffs should get possession on paying Rs. 240. No time was fixed for the payment, nor was any order made for foreclosure or sale. Nothing further was done and now the plaintiffs produce the money and ask to be put in possession of the property.
3. The Munsiff held that the application was barred by time, but this view has not been accepted by the learned District Judge, and the defendants appeal.
4. A preliminary objection is taken that no appeal lies. It is argued that the order complained of is an order in a suit and not in execution, while to the suggestion that it may be a decree it is answered that the appeal is not framed or stamped as an appeal from a decree, but as an appeal from an order.
5. It appears to us that the question whether or not an appeal lies depends on precisely the same considerations as the appeal itself. It is settled in this Court that proceedings under Section 89 of the Transfer of Property Act, are proceedings in the original suit, and not proceedings in execution. Out of the numerous cases on this point we may refer to Pramatha Chandra Roy v. Khetra Mohan Ghose 29 C. 651. Proceedings under Section 92 must stand on precisely the same footing. That section lays down that if the plaintiff succeeds the Court shall declare the amount due, and shall then, if the plaintiff pays up the amount due, order that certain results shall follow, and if he does not pay it shall order that certain other results shall follow. It appears to us that no real distinction can be drawn between the character of these different orders, which would make one a final decree and the other a mere order in execution. Accordingly we feel bound to hold that the application of the plaintiff to the Court to receive the money due and award possession under Section 92 is an application in the suit, and not in execution; and that the order of the Court thereon is the final decree. It can hardly be disputed that, an order under the last paragraph of the section would be the final decree in the suit, and an order in the preceding paragraph seems to us to stand on exactly the same footing. If, therefore, the decree which the plaintiffs obtained in 1895 was a decree under section. 92, we think that the order now appealed against was the final decree, and is appealable as such. But the present appeal is not such an appeal, but a mere appeal from an order, bearing an eight-anna stamp. The appellant's contention, however, is that the original decree, was not a decree under Section 92. We must, there fore, come to a conclusion on this point, both in order to decide the appeal on its merits, and also to decide the question whether an appeal lies.
6. The question whether the original decree was a decree under Section 92 depends on the further question whether it is of the essence of such a decree that a time should be fixed and that an order should be passed, in the case of a mortgage by conditional sale like: the present, for foreclosure in case of default. After the best consideration we have been able to give to this question we think it must be answered in the affirmative. It has been held in the decision of Bepin Behary Shaha v. Mohendra Lal Ghosh 13 C.W.N. XXXV (Notes), to which one of us was a party, that a mortgagor can redeem even after the expiry of the fixed period, until the mortgagee has obtained an order for foreclosure or sale. This view is in accordance with the provisions of Section 60 of the Act. And if the mortgagee finds himself redeemed, long after the original decree, he has only his own negligence, in not applying for an order for foreclosure, to thank. The section places it in his power at any time after the fixed period has elapsed, to secure himself against disturbance by applying for an order for foreclosure. But when the original decree fixes no time for payment, and contains no conditional order for foreclosure, the case is quite different. The mortgagee cannot, so long as the decree remains unaltered, obtain any security at all. It has been suggested that in such a case his rights run from the date of the decree. But if he applied the day after the decree for foreclosure on the ground that the plaintiff had not paid the sum due, no Court would grant it. It cannot have been the intention of the Legislature that the mortgagor should get his lights finally established, but that the mortgagee should get no corresponding chance of having his rights finally established. We think that it follows from these considerations that the fixing of a time, and a conditional order for foreclosure, are of the essence of decrees under Section 92, and accordingly that the original decree in this case was not such a decree.:
7. If this view is correct, it follows that the original decree was an ordinary decree, which would have to be executed in due course, and to the execution of which Article 179 of the Second Schedule of the. Limitation Act would apply. This result is in accordance with the decision in Maloji v. Sagaji 13 B. 567 and derives also some support from that in Hari Ravji Chiplunkar v. Shapurji Hormasji Shet L.R. 13 I.A. 66; 10 B. 461. Indeed the latter decision would be conclusive of the point, were it not that it was passed in a suit decided before the enactment of the Transfer of Property Act, when no special provisions of law existed governing proceedings taken in pursuance of a preliminary mortgage decree, and such proceedings therefore must have been regarded as proceedings in execution, or as coming under no special provision of law: at all.
8. For the above reasons we think that the appeal lies, the order complained of being an order passed in execution of an ordinary decree, not coming under Section 92 of the Transfer of Property Act. We think also that the application on which the order was based was barred by limitation. We therefore allow the appeal with costs. The application to redeem will be refused. We assess the costs at three gold Mohurs.