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ALLAHABAD HIGH COURT
MUKERJI, RYVES, JJ.
Bohra Tara Chand & Ors. - Appellants
Versus
Murtaza Husain - Respondent
Decided On : 18-12-1923
JUDGMENT
1. This is a decree-holder's appeal. The suit in which the decree was passed, was based on a mortgage. The preliminary deoree was passed on the 4th of May 1908. As on this date the new CPC had not come into force the decree was passed u/s 88 of the Transfer of Property Act. The final decree was obtained by the decree-holders on the 19th of August 1909, when the new Act had come into force. The last application for execution was presented after the expiry of 12 years from 19th August 1909. The question, therefore, arises whether this last application would be governed by the old CPC or by Act V of 1908. If the old Code governed the case, he 12 years' limitation would not apply because the decree in the case is a mortgage-decree. If the new Code applies the application would be barred by time.
2. The learned Counsel for the appellants relies on the case reported in Kousilla v. Ishri Singh 6 Ind. Cas. 188 : 32 A. 499 : 7 A.L.J. 420. But in that case both the decrees under Sections 88 and 89 of the Transfer of Property Act had been passed before the new Code of Civil Prooedure came into force, In the case before us the only decree that is executable was passed under the new CPC and, therefore, the rules of procedure laid down in that Code should apply.
3. The decree of the Court below seems to be right and the appeal is dismissed with costs including in this Court fees on the higher scale.
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