Posted On by &filed under Allahabad High Court, High Court.


Allahabad High Court
Chunni Lal vs Harnam Das on 7 February, 1898
Equivalent citations: (1898) ILR 20 All 302
Bench: J Edge, Banerji


JUDGMENT

John Edge, C.J. and Banerji, J.

1. On the 30th of March 1893 the respondent here obtained a decree under Section 88 of the Transfer of Property Act, against the appellant here. By the decree six months were allowed for payment of the decretal sum. That period expired on the 30th of September 1898. On the 10th of March 1397, the respondent decree-holder applied for an order for sale under Section 89 of the Transfer of Property Act. That was the first application made for the execution of the decree or to take a step in aid of the execution of the decree. The first Court held that the application was barred by the Indian Limitation Act, 1877, and dismissed it. On appeal the Lower Appellate Court held, following the decision in Runbir Singh v. Drigpal I.L.R. 16 All. 23, that there was no period of limitation provided for such an application, and set aside the order of the first Court and made an order under Section 562 of the Code of Civil Procedure remanding the case. From that order of remand this appeal has been brought. A Full Bench of this Court has held in Oudh Behari Lal v. Nageshar Lal I.L.R. 13 All. 278, that an application for an order under Section 89 of the Transfer of Property Act is a proceeding in execution of decree and subject to the rules of procedure governing such matters. Applying the decision of the Full Bench, we hold that an application for an order under Section 89 of the Transfer of Property Act is an application to which Article 179 of the second schedule to the Indian Limitation Act, 1877, applies, and consequently, having regard to Section 4 of the Act, the application was rightly dismissed by the first Court. If we were to hold that there was no limitation in such a case the decree-holder might postpone without loss of any rights his application under Section 89 for fifty years after the date when he obtained his decree under Section 88 of the Transfer of Property Act, as there would be nothing in the Limitation Act to bar his application, and Section 230 of the Code of Civil Procedure would not apply. We allow this appeal with costs in this Court and in the Court below, and set aside the order under appeal, dismiss the appeal to the Court below, and restore and affirm the decree of the first Court.


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