JUDGMENT

Sanderson, C.J. - This is a Reference by my learned brother, Walmsley, J., and me to a Full Bench.

2. The facts of the ease are set out in the referring judgment and it is therefore not necessary for me to state them again.

3. My learned brother and I decided that Article 183 of the Limitation Act of 1908 does not apply to the Appellant's application for a decree under Order 34, Rule 6 of the first schedule to the Code of Civil Procedure, 1908.

4. We were of opinion that Article 181 is applicable, but we found that there is decision of a Division Bench of this Court, viz., Biswambhar Shaha v. Ram Sundar Kaibarta [1915] 42 Cal. 294, to the effect that Article 181 does not apply to an application under Order 34, Rule 6. The basis of that decision was that, in a mortgage suit in which there has been a decree for sale and in which the plaintiff had his personal remedy at the date of the institution of the suit, no exception by way of limitation would arise with regard to an application under Order 34, Rule 6 and that such an application is not covered by Article 181.

5. As my learned brother and I were unable to agree with the decision in the above-mentioned case, we referred the matter to a Full Bench.

6. The Reference is as follows:

This Court, therefore, having held that Article 183 of the Limitation Act does not apply to the Appellant's application for a decree under Order 34, Rule 6, differs from the decision in the case of Biswambhar Shaha v. Ram Sundar Kaibarta [1915] 42 Cal. 294, upon the question:

(1) Whether there is any period of limitation in respect of an application for a decree under Order 34, Rule 6.

(2) Whether Article 181 of the Limitation Act applies to an application under Order 34, Rule 6, C.P. Code, where no other article applies, and refers to the decision of a Full Bench-the question whether the case of Biswambhar Shaha v. Ram Sundar Kaibarta [1915] 42 Cal. 294, so far as it decides that Article 181 of the Limitation Act does not apply to an application under Order 34, Rule 6, C.P.C, was rightly decided.

7. Having regard to the fact that my learned brother and I decided that Article 183 did not apply and no question with respect thereto having been referred to the Full Bench, it might be said that it was not open to the learned Counsel, who appeared for the Appellant on the Reference, to argue that Article 183 did apply. Ho submitted, however, that his argument was that Article 181 did not apply, because Article 183 did apply, and the learned Counsel was allowed by the Court to argue the point.

8. The learned Counsel for the Appellant admitted, in view of the decisions of the Judicial Committee of the Privy Council, that it was not open to him to argue that there was no period of limitation as was stated in Biswambhar Shaha v. Ram Sundar Kaibarta [1915] 42 Cal. 294, but he argued that the application for a personal decree under Order 34, Rule 6, was an application to enforce a judgment as being either a proceeding in execution or a proceeding for judicial relief under a decree, and consequently that Article 183 applied.

9. On behalf of the Appellant reliance was chiefly placed upon the decision in Amolak Chand v. Sarat Chandra Mukerjee (1911) 38 Cal. 913 which was affirmed by the Judicial Committee of the Privy Council in Munna Lal Parrack v. S.C. Mukerjee AIR 1914 P.C. 150.

10. In the first place it is to be noted that the argument in the above-mentioned case was that the application was '' free from the law of limitation" to use the words of the learned Chief Justice; that is the argument which it has been admitted cannot be supported.

11. In the second place the learned Chief Justice pointed out that the decree in that case was " in a sense peculiar" for it included not only a decree for personal payment by the mortgagor but also a provision for sale of the property in default of payment. It was assumed, however, for the purpose of the judgment that the decree was within the Transfer of Property Act, and that