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Shiba Durga Debi Vs. Gopi Mohan Shaha and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in33Ind.Cas.180
AppellantShiba Durga Debi
RespondentGopi Mohan Shaha and ors.
Cases ReferredHatem Ali Khundkar v. Abdul Gaffur Khan
Excerpt:
civil procedure code (act y of 1908), section 48, clauses (a) and (b) - mortgage suit--decree absolute, passed after consent decree, execution of, limitation for. - .....on this ground that when there are two decrees in a suit as here, a preliminary decree and a final decree or decree absolute, it was not possible to treat them as separate and distinct decrees. the final decree is the complement of the preliminary decree, and for the purpose of clause (a) of sub-section (1) of section 48, the two together must be taken to be a single and indivisible decree, the date of which is the date of the final decree or decree absolute, or possibly it may be more correct to say that it is the final decree which makes the preliminary decree operative and effectual and renders it enforceable in execution. in that view it is the final decree which is executed. we do not stop to consider whether it was necessary to obtain a decree absolute in this case in.....
Judgment:

1. This is an appeal from the order of the learned District Judge, dated the 11th February 1915, by which he dismissed an appeal from the order of the learned Subordinate Judge, dated the 17th June 1914. The matter arises out of a proceeding taken in execution of a decree upon a mortgage and the point involved is one of limitation.

2. It appears that on the 10th March 1896, a decree was made by consent providing for the payment of the amount due by the judgment-debtor in instalments. The condition was annexed that if default were made in the payment of two consecutive instalments, the decree-holder (the respondent before us) should be at liberty 'to realise the entire amount due on account of all the kists past and future by serving proclamation of sale and by selling at auction the mortgaged properties mentioned in the present decree.' Then there is this provision: 'And if the plaintiff's dues are not fully satisfied by the price fetched by the sale, the plaintiff shall be entitled to realise the balance by a proceeding against the defendant's other moveable and immoveable properties left by the deceased debtor Golak Chandra Mahanty. The properties mentioned in the plaint remain fully mortgaged and liable for the decretal amount.' For the translation of the concluding portion of the decree from which we have quoted, we are indebted to the learned Pleader for the appellant. Neither the decree itself in its entirety nor the decree absolute to which we are about to refer has been placed before us. Apparently the judgment-debtor failed to pay any of the instalments as they fell due. The first default occurred at the end of the year 1896, and the next following default was in April 1897. On the 24th March 1900 the decree-holders obtained the decree absolute and subsequently thereto they brought the mortgaged properties to sale in the ordinary course of execution. The last sale took place, as we are informed, in the year 1906. Then, in March 1912, within twelve years of the decree absolute, the decree-holder applied for the sale of the properties of the judgment-debtor other than those covered by the mortgage; in other words, he sought to enforce the personal remedy for which provision had been made in the decree of the 10th March 1896. The judgment-debtor filed an objection to this application on the ground that it was barred by limitation under Section 48 of the Code of Civil Procedure, 1908. The Courts below have decided the question in the decree-holder's favour and the judgment-debtor has appealed.

3. The arguments urged on the appellant's behalf by the learned Pleader are to the following effect. As to Clause (a) of Sub-section (1) of Section 48, Civil Procedure Code, it is said that if limitation is to be computed from the date of the decree sought to be executed, the decree to which we ought to look for this purpose is the decree of the 10th March 1896 and not the decree absolute of the 24th March 1900. As to Clause (6) of Sub-section (1) of Section 48, the contention is that the limitation should run, at the latest, from the time when default was made in paying two consecutive instalments, i.e., from April 1897. If these contentions are correct, the decree-holder's application is barred whichever of the two clauses is applied. In the view we take, however, Clause (6) need not be considered. It has no application to the present case, because the decree-holder is not seeking to enforce his remedy in respect of the default in paying the instalments but in respect of the fact that the proceeds of the sales of the mortgaged properties were not sufficient to meet his claim.

4. In regard to Clause (a) the appeal fails, in our opinion, on this ground that when there are two decrees in a suit as here, a preliminary decree and a final decree or decree absolute, it was not possible to treat them as separate and distinct decrees. The final decree is the complement of the preliminary decree, and for the purpose of Clause (a) of Sub-section (1) of Section 48, the two together must be taken to be a single and indivisible decree, the date of which is the date of the final decree or decree absolute, or possibly it may be more correct to say that it is the final decree which makes the preliminary decree operative and effectual and renders it enforceable in execution. In that view it is the final decree which is executed. We do not stop to consider whether it was necessary to obtain a decree absolute in this case in addition to the consent decree of the 10th March 1896. A decree absolute was in fact made and must now be assumed to have been properly made. Its precise terms are not before us, and on the materials which are before us the decree which has been put in execution must be taken to be the preliminary decree read with the final decree. It is idle to say that the personal remedy which the decree-holder is seeking to enforce is to be found in the preliminary-decree. The personal remedy was not available till after the mortgaged properties had been sold under the decree absolute.

5. The learned Pleader has invited our attention to the case of Jnanendra Nath Bose v. Khulna Loan Co. Limited 24 Ind. Cas. 35, 18 C.W.N. 492. The however, that was there decided is not the point before us now. We have referred to the paper-book, and we find that the application for execution in that case was made more than 12 years after the date of* the final decree. That ease, therefore, does not help us. On the other hand, the learned Pleader for the decree-holder respondent has referred us to other cases which support the view we tak. It was said in the case of Ajudhya Persad v. Buldeo Singh 21 C. 818 at p. 823. (6) 22 C. 924 that until the decree absolute is made there is in fact no decree capable of execution, and this observation was repeated in Hatem Ali Khundkar v. Abdul Gaffur Khan 8 C.W.N. 102.

6. The result is that the appeal must be dismissed with costs. We assess the hearing fee at five gold mohurs.


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