Limitation for executing a mortgage decree, including recovery from the judgment-debtor's person or other properties, runs from the date of the decree, not from the date the mortgaged property is sold.

Facts :-

The following judgment of the Calcutta High Court gives the history of the case :-

This appeal arises out of execution of a mortgage decree. It was directed in that decree that the mortgaged property should be sold and if the proceeds of the sale were insufficient, the balance should be realized from the other properties and the persons of the judgment-debtors. This application was presented more than 12 years after the date of that decree. The learned Subordinate Judge has held that there were virtually two decrees at that time and that the period of 12 years did not run until what he regards as the second decree under section 90 of the Transfer of Property Act, 1882, became operative and capable of execution. Accordingly he held that the application was not barred, basing his decision on the case of Chandi Charan Roy v. Ambika Charan Dutt [1904] 31. Cal. 792.

The judgment-debtor appeals, and it is argued that the execution is barred. It appears to us that this contention must succeed. The case cited by the learned Subordinate Judge is not an authority for the holding that the decree-holder, who has obtained a decree such as given in this case has 12 years for proceeding against the person and other properties of the judgment-debtor dating from the time when the mortgaged property has been sold. The point never arose in that case. All that was held in that case was that when the execution was applied for more than 12 years after the mortgaged property had been sold, the application was barred. But the question whether it was or was not barred before that stage was not raised in that case and was not decided. The terms of section 48 seem to us to be perfectly clear, and according to that section time runs from the date of the decree. The date of the decree is fixed by Order 20, R. 6, and we cannot understand how there can be any other date of the decree from which limitation should run. It has been suggested that this case may be regarded as one in which the decree directed the payment of money to be made at certain date, namely, after the mortgaged property had been sold. It appears to us that a direction of such a kind would certainly not be a direction to pay money at a certain date. The date would not be certain.

Next, it has been argued that the first application for execution against the person and other properties of the judgment-debtor might be regarded as an application for an order under section 90 and the order passed thereon might be regarded as a decree. Applications for execution are ordinary applications for the attachment of property and bear no resemblance whatever to an application under section 90. No reason really has been shown to us for supposing that the application of 1908 for execution was in any way an application for a decree under section 90.

We think, therefore, that the appeal must be decreed and the application refused as being barred by limitation.

The appellant will be entitled to his costs in both the Courts. We assess the hearing fee at four gold mohurs.

(Against this decree an appeal was presented to the Privy Council who delivered the following judgment.)

Lord Dunedin :—

Their Lordships do not see any reason to differ from the judgment of the High Court in this case. They will, therefore humbly advise His Majesty to dismiss the appeal. As the Respondents have not appeared, there will be no order as to costs.

Appeal dismissed.