VENKATARAZU Vs. CHINNA RAMAYYA
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(1.) The decree in Original Suit No. 344 of 1895 on the file of the District Munsif of Narsapur, passed on the 30 August 1895, was a decree under Section 88 of the Transfer of Property Act. On the 30 September 1896 Erra Chinna Ramayya (present respondent) the transferee of the original decree-holder (plaintiff) applied to the District Munsif for an order that a proclamation should be issued in accordance with Secs.286 and 287 of the Civil Procedure Code in respect of the mortgaged immoveable property mentioned in the decree, and the same brought to sale. On the 16 October it was directed that a notice should be issued and on the 30 of the same month the following order was passed: "No opposition, petition granted. Batta for proclamation." On the 19 December the application for execution was dismissed as no batta had been paid. On the 10 October 1896 another application for execution was presented, but from that date no further step in execution was taken till the present application was made on the 20 November 1899. Although it is not so stated in the petition, there appears to be no doubt that the] present application is intended to be put in under Section 89 of the Transfer of Property Act asking for an order absolute for the sale of the mortgaged property. The District Munsif held that the present application was barred by limitation on the ground that over three years had elapsed between the application of the 10th October 1896 and the present petition; but the District Judge has reversed his order, holding that no limitation is prescribed for applications under Section 89 of the Transfer of Property Act.
(2.) We are of opinion that the order of the District Judge cannot be upheld. As it is in our opinion not now open to the respondent (the decree-holder's assignee) to make an application under Section 89 of the Transfer of Property Act, the question as to whether there is any limitation with respect to the period within which such applications must be brought does not arise. In this application of the 30 September 1896 the respondent asked for the sale of the mortgaged property, and an order was passed in accordance with his request. It may be that this order was irregular and that the District Munsif should have directed the respondent before he attempted to proceed further to apply under Section 89 of the Transfer of Property Act for an order absolute for sale. Execution, however, having been ordered by the District Munsif without a formal order under Section 89 of the Transfer of Property Act having been previously made, the respondent, who was a party to that order and is bound by it, is now precluded from contending that it should not have been passed. The order of the 30 October 1896 passed on the petition of the 30 September must be held to be an order absolute for sale as well as an order directing certain further steps in execution and such being the case, it is not open to the respondent now to apply for an order under Section 89 of the Transfer of Property Act. His present petition must accordingly be looked on as nothing more than an ordinary application for execution and as such it is barred as having been presented more than three years from the date of the last similar application.
(3.) We reverse the order of the District Judge and restore that of the District Munsif dismissing the present application with costs throughout.;
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