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Civil Appeal No. 7 of 1961, decided on 4th December 1962.

Arts. 181 & 182‑Decree for recovery of possession contingent upon decree‑holder paying certain sum of money to defendant‑No date for payment specified ---Whether Art. 181 or 182 applicable : (Quaere).

A I R 1931 All. 326 ; A I R 1945 All. 10 and 7 1: C 568 rel.

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----Execution of‑ Court passing conditional decree for possession on deposit of certain amount by way of charge-- Decree, held, passed in terms of O. XXXIV, r. 7, Civil Procedure Code (V of 1908)‑Art. 182, Limitation Act (IX of 1908) applicable for execution of decree‑Limitation to be counted from date of decree plus six months allowed under O: XXXIV, r. 7, Civil Procedure Code, 1908.

Chitalay : "Civil Procedure Code," O. XXXIV, r. 7 (Note 9) and 18 I C 48 ref.

Qazi Abdul Hakim with Kh. Muhammad Shafi for Appellant.

Sh. Abdul Hamid for Respondent.

.‑This is a second appeal from the order dated 4‑1‑1961 of the District Judge, Poonch, dismissing the appellant's appeal from the order dated 21‑7‑60 of the Sub‑Judge, Rawalkot dismissing the decree‑holder's (appellant) application for execution of the decree passed by the Sub‑Judge in his favour on 8‑10‑1956 as being time‑barred.

The decree sought to be executed was passed, in the appellant's favour in the following terms "decree for possession of Khasra No. 1346 Min, situate in village Chir, Tehsil Sudhnuti, is passed in favour of the plaintiff against the defendant No. 1 on payment of Rs. 500 and costs etc., etc .......

No time was fixed within which the appellant was to pay the amount. He paid the amount after 3 years of the passing of the order, on 4‑4‑60 and applied for execution. The Sub‑Judge held the execution application to be barred by time on the ground that the decree was executable soon after it was passed because there was nothing to prevent the decree‑holder to deposit the amount soon. In his opinion, Article 181 of the Limitation Act applied to the case. On appeal, the District Judge, upheld the finding of the Sub‑Judge that the application was barred by time though he was of the view that it was not Article 181 of the Limitation Act but Article 182 that was applicable. The appellant has now come up in second appeal to this Court and has urged before us firstly, that the decree was not executable till Rs. 500 had been deposited according to the terms of the decree and, therefore, the period would begin to run from the date of the deposit by the decree- holder and as it was deposited on 4‑4‑60 the execution application of the decree‑holder which too was filed on 4‑4‑60 was within time and secondly, that as R s. 500, the amount which the decree- holder had been ordered to deposit was a charge on the property, the procedure laid down in Order XXXIV, rule 7 or 8 of the C. P. C. was applicable and the decree‑holder (appellant) was competent to deposit the amount and ask for the possession of the suit land as long as the defendant bad not applied to the Court for the sale of the land subject to the charge.

As regards the first point, there is a conflict of, judicial opinion.

In A I R 1931 All. 326, the view taken is that where a decree is not immediately executable and the right to apply for execution depends upon the fulfilment of certain contingencies provided for in the decree, Article 182 is inapplicable and the only Article governing the execution is the residuary Article 181. It was observed by their Lordships that where under the terms of a decree the right of the decree‑holder to recover possession of some property in the opinion of the defendants is contingent upon the decree‑holder paying certain sums of money to the defendant but no date for payment is specified the decree‑holder is entitled to pay the amount on the date when the decree was passed and to ask for possession im mediately after the payment had been made. The right accrues to the decree‑holder immediately and at once, and the decree -holder is not entitled to prolong the date of payment by his or her in‑action or laches. A similar view of law was taken in A I R 1938 Born. 367.

In A I R 1945 All. 10, the view taken was that in determining the question as to the period within which the money is to be deposited, in a case where a Court passed a conditional decree for possession on deposit of a certain sum of money and has failed to fix any period for the deposit, neither Article 181 nor 182 is applicable nor is there any Article in the Limitation Act which governs such deposits. In such cases the decree‑holder is entitled to deposit the money within a period of 12 years from the date of the decree.

Yet another view is that Article 182 of the Limitation Act would apply and time would begin from the date of the decree and this is the view taken by the District Judge. (7 I C 568, may be referred to in this connection).

Before we accept any one of the 3 views referred to above it would be proper to examine the decree as passed by the Court of first instance. The suit originally filed by the decree‑holder was for possession of a piece of land. The plea taken up by the defendant (respondent judgment‑debtor) was that the land stood mortgaged to him for a sum of Rs. 500. The mortgage deed produced by the respondent in support of his contention was not registered because in those days (i.e. 1948) there was no machinery set up by the Government, for registering documents. The trial Court in view of the fact that the mortgage deed was not registered created a charge of Rs. 500 on the land in favour of the respon dent and passed the decree in terms already reproduced above. Order XXXIV, rule 15, C. P. C. lays down that all the provisions contained in Order XXXIV, which apply to simple mortgages shall, so far as may be, apply to a mortgage . . . . . ., and to a charge within the meaning of section 100 of the Transfer of Property Act, 1882. This means that the decree in question was passed in terms of Order XXXIV, rule 7. Note 9 (Chitalay's C. P. C.) of Order XXXIV, rule 7, runs thus :‑

"A decree under this rule should state a period within which the mortgage money should be paid. This period may be less than 6 months. If the decree for redemption fixes no period for payment it must be taken as an ordinary decree to which Article 182 of the Limitation Act would apply."

18 I C 48, may be referred to in this connection. We are inclined to take the view as taken in 18 I C 48, and hold that Article, 182 of the Limitation Act is applicable to the present execution applica tion and the period is to be counted from the date of the decree plus 6 months, the maximum period allowed under Order XXXIV, rule 7 for depositing the amount. Computing the period thus the execution application is within the time.

As pointed out by the learned counsel for the appellant, the appellant could even under Order XXXIV, rule 8 make payment and get possession of the property before a final decree debarring him from all rights to redeem the mortgaged property had been passed or before the confirmation of the sale held in pursuance of a final decree. In the present case the respondent (judgment- debtor) had never applied for a final decree to be passed as contemplated by Order XXXIV, rule 8, clause (3).

In the circumstances and for the reasons stated above we hold that the appellant was never too late in depositing the amount of Rs. 500 and applying to the Court for possession of the suit land. We, therefore, accept the appeal with costs and set aside the judgments of the Courts below.

K. B. A./A. H. Appeal accepted.

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