Parmeshri Lal and ors. Vs. Mohan Lal

limitation act no. xv of 1877 (indian limitation act) schedule ii, article 179 - act no. iv of 1882 (transfer of property act) section 87--execution of decree--application for order absolute for foreclosure--limitation. - burkitt, j.1. under the ruling of this court in the case of chunni lal v. harnam das i.l.r. 20 all. 302, it was held, following the case of oudh behari lal v. nageshar lal i.l.r. 13 all. 273, that an application to obtain an order absolute under section 89 of act no. iv of 1882 is a proceeding in execution and is subject as such to all the rules relating to execution. the present application is not one under section 89, but is one under section 87 of the transfer of property act, its object being to have an order made debarring the judgment-debtor from all right to redeem the mortgaged property. i am unable sufficiently to distinguish proceedings under section 89 from those under section 87 of the transfer of property act, so as to be able to say that the former are, and the latter are not, proceedings in execution. i must hold, following the ruling of this court quoted above, that the present application is an application in execution to which the provisions of article 179 of schedule ii of the limitation act apply. it is admitted that a period of more than three years has elapsed between the date of the decree and the date of the application. the application was therefore time-barred when made. i allow this appeal, and, setting aside the decree of the court below, restore the decree of the court of first instance and dismiss the decree-holder's appeal to the lower appellate court with costs.