Full Judgment
1. This is a plaintiff's appeal arising under these circumstances,-
On the 9th of May 1908 a preliminary decree based on a compromise was passed, under which the amount found due was to be. paid in three instalments in the years 1909, 1910 and 1911. It was provided that in case of default of payment of any instalment the decree-holder would be entitled to recover the whole of the decretal amount with interest, and it was also added that the amount will be realized in the first instance by sale of the share belonging to Rajender Misir, judgment-debtor, and in case the sale proceeds were insufficient to pay the decretal amount, then the share of Mussammat Bachchi, the other judgment-debtor, would be liable to be sold.
3. It is admitted that no instalments were paid in time. An application was accordingly made on behalf of the decree-holder for an order absolute, and on the 30th of March 1913, a final decree was passed -by the Trial Court. It, however, appears that on that date Musammat Bachchi, judgment-debtor, was dead. Several applications for execution of this final decree were v made, and on objections having been raised by the heirs of Musammat Bachchi, they were exempted, but execution proceeded against Rajender Misir. His property was sold and the sale proceeds proved insufficient, to pay the whole decretal amount. On the 17th April 1918 the decree-holder applied for sale of the property which originally belonged to Mussammat Bachchi. An objection having been raised by the heirs on the ground that the final decree of the 30th of March 1912 was a nullity as against Musammat Bachchi and her heirs inasmuch as neither she nor they were parties to it, this objection was allowed on appeal on the 17th January 1920. When this process failed, the decree-holders put in an application on the 18th March 1920, which is a subject-matter for consideration in the present appeal, which application purports to have been made under Order XXXIV, Rule 5, Sub-clause (2), and asks 'for a decree absolute for the sum of Rs. 2,463-8-0 as per account given below, in respect of sale of the property to the extent mentioned therein;' The Court of first instance allowed the application but on appeal the learned District Judge has disallowed it, holding that such an application was barred by time.
4. The only point before us is one of limitation. On behalf of the appellant it is contended that the decree of the 9th May 1908 was not a preliminary decree, for sale under Section 88 of the Transfer of Property Act or Order XXXIV, Rule 4 of the new Code and that, therefore the provisions of the Code do not, apply. Assuming that that contention is correct, it is quite clear that the application would, in any case, be an application-for making a conditional decree, passed by consent, absolute. Even such an application would be governed by the general Article 181, which applies to all applications for which no period of limitation is provided elsewhere in the Limitation Act or by Section 48 of the Code of Civil Procedure. That being so time would begin to run from the date 'when the right to apply accrued.' In the present case, on the terms of the decree itself, there can be no doubt whatsoever that the right to apply for an order absolute accrued when the first default was made. In fact, the decree-holders did actually apply and it was only under a mistake that Musammat Bachchi's heirs were not made parties to that application. The right to apply for an order absolute against Rajender Misir as well as Musammat Bachchi's heirs accrued at one and the same time, and time began to run against the decree-holders from that date.
5. It has been very strenuously contended by the learned Vakil for the appellant that, inasmuch as there was a condition in the decree to the effect that Rajender Misir's share should be sold first, the right to apply did not accrue till it had been found that, the share of Rajender Misir was insufficient to pay the decretal amount. In our opinion, this contention is not well-founded. The right to apply for an order absolute is one, thing, and the determination of the question as to which property should be sold first is another.
6. The result is that the view taken by the learned District Judge is correct. The appeal fails and is hereby dismissed with costs.