ORDER <NAME>, J.

1. The tenant has filed this revision against the order dated 24.10.1996 in R.C.A. No. 851 of 1996 on the file of the VII Judge, <ORG>, Madras, confirming the order of the VI Judge, <ORG>, Madras in H.R.C. No. 2977 of 1975, dated 30.11.1978.

2. The respondent filed H.R.C. No. 2977 of 1975 for eviction of the petitioner from the building bearing door No. 10, Kasi Chetty Street, G.T., Madras, on the ground of wilful default in payment of rent for the period from 1.10.1971 to 31.7.1972 and from 1.6.1974 to 30.4.1975.

3. The Rent Controller after considering the evidence in the case passed an order of eviction on 30.11.1978. M/s. <ORG> represented by <NAME>, filed H.R.C. No. 214 of 1976 for deposit of rent under Section 8(5) of the Tamil Nadu Buildings (Lease and Rent Control) Act, alleging the respondent herein refused to receive the rents sent by money order and cheques. This H.R.C. No. 214 of 1976 was also disposed along with the main H.R.C. No. 2977 of 1975 on 30.11.1978 by a common order.

4. As against the order of eviction in H.R.C. No. 2977 of 1975, the petitioner filed R.C.A. No. 851 of 1996. As there was delay in filing the appeal, the petitioner filed M.P. No. 206 of 1976 under Section 5 of the Limitation Act, but the said petition was dismissed by the appellate authority as net maintainable. Thereupon, a civil revision petition was also filed in <ORG> and the same also met with the same result. Thereupon, the petitioner filed an appeal before <ORG> in C.A. No. 3421 of 1979. On 7.2.1992 the appeal was allowed by <ORG> and <ORG> has declared that Section 5 of the Limitation Act would be applicable to an appeal to be preferred before the appellate authority under the Tamil Nadu Buildings (Lease and Rent Control) Act. That inspite of the said fact, the execution petition came to be filed in the year 1995 and possession had also been taken by the landlord on 4.1.1996. Whether the possession has been properly taken or not is not the question that has to be considered in this case.

5. Thereupon appeal was numbered by the appellate authority as R.C.A. No. 851 of 1996. It appears that even though <ORG> has allowed the appeal as early as on 7.2.1992, there was some delay in communication from <ORG> to <ORG> and on that account an inordinate delay has been caused in taking the appeal proceedings for disposal by the appellate authority. However, we are not concerned with the delay at present.

6. After considering the evidence on record, the appellate authority also has held that the default of the petitioner to pay rent for the period mentioned in the rent control petition was wilful and hence he confirmed the order of eviction passed by the Rent Controller.

7. The learned Counsel for the petitioner contended that strictly speaking there was no default much less wilful default in payment of rent. What has happened in this case is that after sending the rent by the petitioner in his individual name <NAME>, he chose to send the rents on behalf of a partnership firm, namely, <ORG>. His sending rents are evidenced by the documents Exs.R-15 to R-42. He had sent rent under Ex. R-14. Subsequently, the previous landlord writes a letter under Ex. P-5 dated 17.11.1975 informing Mr. <NAME> that he sold the property to <NAME> and the rent from 1.11.1975 should be paid to the said <NAME> directly. Ex. P-6 is the postal acknowledgment received by <NAME>. <NAME> also sent a reply under Ex. P-7. Even though the said letter head bears the name of M/s. Bhupendra Plastic Industries, <NAME>, has alone sent it. Ex. P-7 shows that he has written the letter in his individual capacity. After having sent the rent upto a certain period, as is evidenced by Ex. R-14, the tenant <NAME> has started sending rents on behalf of the firm. From the evidence arid Ex. R-15, etc. which were refused. The landlord has not chosen to accept the rent sent on behalf of the firm. Only when the rents have been sent on behalf of the firm the refusal has taken place. The petitioner could have taken note of the refusal and continued to the rent in his individual capacity, but he has not done so. On the other hand, he has been persistently sending the rents in the name of the firm.

8. It is not his case that even though there was no written agreement, there was an agreement that after taking the building on lease in his individual capacity, he was entitled to continue the business in the name of the partnership firm and pay the rents in the name of the firm. He has also not explained as to why he has suddenly chose to send the rents on behalf of the firm without the concurrence or acceptance from the landlord. It is true that after refusing to receive the rent sent by money order, the landlord has not sent any intimation that the rent should be paid only in the name of the individual i.e., <NAME>. But at the same time there is also no attempt on the part of the respondent to get an intimation as to why the rents sent by him were not accepted. But as stated above, since suddenly the rent has been sent on behalf of a firm, they have been refused. The refusal itself would indicate that the landlord was not willing to receive the rent. Of course, from this alone we cannot conclude that the default committed by him is wilful. But there are other circumstances also, which we have to take note of. After the landlord refused to receive the rent, the petitioner has filed a petition under Section 8 of the Tamil Nadu Buildings (Lease and Rent Control) Act, for deposit of rent, i.e., H.R.C. No. 214 of 1976. The said petition has been filed by M/s. <ORG> represented by <NAME>. We can understand that if the said petition has been filed on behalf of the individual, i.e., by <NAME>, some excuse can be found; but not only, that, he has also asserted in his counter in paragraph No. 2 that the rent control petition is not maintainable, since M/s. <ORG> were the real tenants. Further, he has also stated that in the earlier proceedings in H.R.C. No. 1768 of 1972, his case that he was not the tenant, but the firm was the tenant was accepted. But he has not produced any evidence to establish this fact. His repeated assertion that the rents were paid only by the firm goes to show his mental attitude. From his stand, it is clear that according to him, the tenant is M/s. <ORG>. Therefore, he ought to have proved the said fact before the Rent Controller as well as the appellate authority. But he has not done so. As stated earlier, he has filed H.R.C. No. 214 of 1976, wherein he has asserted that the tenant was the <ORG>. The said petition was dismissed by the Rent Controller. The Rent Controller has given a categorical finding in paragraph 7 that <NAME> alone in his individual capacity is the tenant and his persistency in having sent the money order on behalf of the <ORG> was not proper. After giving a finding as aforesaid, he states that H.R.C. No. 214 of 1976 was not well founded in fact. As against the said order passed in H.R.C. No. 214 of 1976, the petitioner has not filed any appeal. The failure on the part of the petitioner to file an appeal indicates to some extent that his case that he is not a tenant, but the firm is not bona fide.

9. The learned Counsel for the petitioner cited a judgment reported in <CITATION> . In the said case, <ORG> has laid down certain criteria to find out whether a default can be treated as wilful default or not. Four ingredients have been mentioned to constitute wilful default. The learned Judges have stated that the default must be intentional, deliberate, calculated and conscious. In the case on hand, the failure on the part of the petitioner to tender the rent in his name is intentional because, he wants to have the firm recognised as tenant. His continued sending of the rent by money order in the name of the firm even after refusal on the part of the respondent to accept the same tantamount to his deliberate act calculated to achieve an object. When the rent sent by him on behalf of the firm has been refused, he ought to have known that the reason for refusal was the change of the name of the tenderer. He has been sending the rent in the name of the firm with the obvious motive of getting the tenancy right transferred in the name of the firm indirectly. When he converted his business into a partnership firm, he could have approached the landlord and made a request for recognising the firm as the tenant. That should be the attitude of the tenant. On the other hand, in this case, he goes to the extent of asserting that the firm was the tenant. Therefore, in my view all the four ingredients stated in the said decision arc found in the present case. Therefore, the said case is not helpful to the petitioner.

10. Learned Counsel for the petitioner cited a decision reported in <NAME> v. <ORG> (1969)1 M.L.J. 644 and contended that mere permitting of a partnership firm will not tantamount lo subletting. In the said case, the original tenant constituted a partnership and converted into a partnership business and in the said partnership business, he was the wholetime partner. The landlord filed a petition for eviction on the ground of subletting. The Rent Controller and; the appellate authority found that there was no transfer of legal possession, but the District Judge held that there was a totality of transfer of lease and ordered eviction. Justice <NAME> (as he then was), held that whether the admission of another to the possession of the premises would amount to subletting or not would depend upon the intention of the parties and has to be decided on the facts and circumstances of the case. In this case, as we have stated above, it is very clear that the intention of the petitioner was to have the tenancy transferred in the name of the firm from his individual name. That intention is clearly made out from his conduct of sending the rent in the name of the firm and asserting that the firm was the tenant. That apart, this is not a case for eviction on the ground of subletting. But it is a case of wilful default and that has to be considered in this case. Whether the default in not tendering the rent by the tenant namely, <NAME> was wilful or not. We have found that his action definitely tantamount to a conscious, calculated and wilful attempt to have the tenancy transferred in the name of the firm and with that oblique motive, he has been sending the rent in the name of the firm. Therefore, there is a conscious default to tender the rent in the name of the tenant and that will satisfy the requirements of Section 10(2)(i) of the Act.

11. Section 10(2)(i) is as follows:

that the tenant has not paid or tendered the rent due by him in respect of the building, within fifteen days after the expiry of the time fixed in the agreement of tenancy with his landlord or in the absence of any such agreement, by the last day of the month next following that for which the rent is payable.

The tenant in this case is <NAME> and not <ORG>. Since the rents have been sent by <ORG>, as is evidenced by Exs. R-15 to R-42, there is no lender by <NAME>. Apart from sending the rents in the name of the firm, the petitioner has also assccrted that <ORG> is the tenant. Therefore, in the circumstances, even according to the petitioner the rents which he has sent were not for himself but for the firm <ORG>. In substance this goes even to the extent of admitting that the rents were not tendered by the tenant <NAME>. Therefore, there is a default to pay or tender the rent.

12. The next question that has to be decided is whether the default tantamount to wilful or not. We have already found that there was a conscious and calculated intention on the part of the petitioner not to pay rent in his name. In the circumstances, the requirements of Section 10(2)(i) read with the Explanation to the said section has been satisfied with.

13. The learned Counsel for the petitioner further contended that as regards the default in payment of rent from 1.10.1971 to 31.7.1972, there is a clear assertion in the counter in paragraph 4 that all the rents for the said period were paid and accepted. He also brought to the notice of the court the submission in the petition itself in paragraph 8 wherein there is a statement to the effect that the respondent was in arrears of rent for the period from June, 1975 to 30.9.1975. According to the learned Counsel for the petitioner, the rents have been paid for the earlier period and the default alleged for the said period should not be countenanced at all by the court. Assuming for the sake of argument that the rents have been paid for the said period, from 1.6.1974 to 30.9.1975, there is no tender by the tenant, namely, <NAME> for the firm and we have found that the tender was only in the name of the firm. We have also found as mentioned above, that there was non-compliance of Section 10(2)(i) of the Act and the said non-compliance is wilful. The Rent Controller as well as the appellate authority have found that the tenant has not tendered the rent for the said period. As already stated in my view also there is a default and the default is wilful. In such circumstances, it cannot be said that the courts below have not taken note of the aforesaid facts and wrongly found that he committee wilful default and therefore rendered himself liable for eviction.

14. The learned Counsel for the respondent contended that the courts below have concurrently found that the default committed by the petitioner is wilful and therefore exercising the jurisdiction under Section 25 of the Tamil Nadu Buildings (Lease and Rent Control) Act, this Court should not interfere with such a finding. He cited a number of authorities also on this point. Even though mere default in payment of rent can be construed as only a pure question of fact, when a default to pay rent by tenant has to be understood in the light of Section 10(2)(i) read with the proviso to that section, the default has to be interpreted and understood legally. Therefore, it cannot be said that a wilful default can be construed to be only a simple question of fact. Therefore, I do not find anything wrong in going into the question as to whether the default committed by the petitioner is wilful default or not. After considering all the facts and circumstances of the case, I am of the view that there is no justification for interfering with the orders passed by the courts below. In the circumstances, the civil revision petition is dismissed. However, there will be no order as to costs.


JUDGMENT Sen, J.

1. The appellants are the sons of one <NAME>, opponent No. 3 in Darkhast Not 452 of 1937 filed in <ORG> at Devrukh by one <NAME>, respondent No. 1, in execution of a decree passed in the latter's favour on June 7, 1927, against opponents Nos. 1 and 2, judgment-debtors, named <NAME> and <NAME>. <NAME> had been one of the <NAME>' creditors and his claim was referred to arbitration, an award made and a decree passed in regular civil suit No. 80 of 1927. The decree directed that defendants Nos. 1 and 2 should pay to the plaintiff the principal amount of Rs. 2,178 within five years with interest at six per cent. per annum, that the past interest of Rs. 272 should be paid within a year from the date of the decree, and that if the defendants committed default in payment of this amount of interest in time, the plaintiff would be entitled to recover the whole amount payable by the sale of certain immoveable property on which a charge in respect of Rs. 2,178 was created, and it further provided that if the sale proceeds were insufficient, the deficit should be recoverable out of the remaining property of the defendants and from the defendants personally. There was a similar provision regarding interest accruing annually from the date of the decree. Default having been committed, <NAME>, the decree-holder, brought the present darkhast for sale of six of the properties covered by the charge, and further prayed that if the sale proceeds fell short of the money due to him, another property belonging to the judgment-debtors, viz. survey No. 40, should also be brought to sale. Prior to the present darkhast, <NAME> had filed four darkhasts, viz. darkhast No. 247 of 1928, darkhast No. 195 of 1931, darkhast No. 436 of 1932 and darkhast No. 465 of 1934. In the last of those darkhasts he had prayed for rateable distribution of the sale proceeds which would be realised in another and prior darkhast No. 324 of 1934 filed by one <NAME>, a mortgagee of the <NAME>, in execution of a decree for Rs. 426-8-2 obtained in civil suit No. 349 of 1929. In that darkhast the proceedings had been transferred to the Collector under Section 68 of the Code of Civil Procedure and a sale ordered. The sale was to take place on June 10, 1935. On that day the <NAME> applied for six days' time for arranging for a private sale, and on June 11 the <NAME> granted permission, purporting to act, it seems, under Order XXI, Rule 83, on condition that the money realised should be deposited in <ORG> by June 15, 1935. The permission referred to three encumbrances on lots Nos. 9 to 14, the property in respect of which the present darkhast No. 452 of 1937 has been filed, viz. two encumbrances in favour of <NAME>, including the one which was being enforced in the execution proceedings, and one in favour of one <NAME>. The <NAME> arranged for a sale of lots Nos. 9 to 14 with the appellant, <NAME>. <NAME> agreed to forego his claim on lots Nos. 9 to 14 and to confine it to another property, via. lot No. 15. In respect of the other encumbrance in favour of <NAME> the latter had obtained a decree in civil suit No. 348 of 1929 and an amount of Rs. 940 was due thereon. A sale-deed, exhibit 47, was passed on June 15, 1935, in favour of <NAME> for Rs. 1,366-8-2 (the total of the two amounts due to <NAME> under the two decrees against the <NAME>). It was recited therein that Rs. 426-8-2 due under the decree in regular civil suit No. 349 of 1929 was to be paid into <ORG> for the complete satisfaction of the darkhast and that Rs. 940 was to be kept with the vendee, <NAME>, for being paid in the execution proceedings of suit No. 348 of 1929. <NAME> accordingly paid Rs. 426-8-2 into <ORG> on June 15, 1935, and the sale-deed was taken to, the Sub-Registrar for registration on June 17, 1936. On the same day, but before the deed had been brought to the Sub-Registrar, <NAME> made an application to the latter requesting him that in case a sale-deed in favour of <NAME> was brought for registration, the vendee should be notified of his decree of 1927 for Rs. 2,178 and costs and interest. It is admitted that the Sub-Registrar duly notified <NAME> of this application before the sale-deed, exhibit 47, was registered. <NAME> did not at once deposit Rs. 940 in <ORG> as ordered by the <NAME>; <NAME> had to file darkhast No. 320 of 1935 seeking to bring the property to sale, and <NAME> thereupon deposited Rs. 975-13-0 in <ORG> on April 7, 1936. On this amount being paid to <NAME>, the property in dispute became free from <NAME>'s encumbrance.

2. In this darkhast, No. 452 of 1937, the following objections were taken by the appellant, <NAME>, the judgment-debtors remaining absent :

(1) The previous darkhast No. 465 of 1934 was not an application made in accordance with law, and therefore the present darkhast was barred under Article 182 , Clause (5), of the first schedule to the Indian Limitation Act ; (2) the appellant was a bona fide purchaser for value without notice of the charge created in favour of <NAME>; <NAME>, therefore, could not enforce his decree against him; and (3) even if <NAME> could do so, the appellant was entitled to claim subrogation as he had satisfied the two encumbrances of Sane which were prior to <NAME>'s charge. <ORG> held that none of the objections were tenable, and ordered the sale of the property mentioned in the darkhast application. The appeal to <ORG> was dismissed.

3. The objection on the point of limitation is this. Rateable distribution which was sought in darkhast No. 465 of 1934 could not, it is urged, have been granted under Section 73 of the Code of Civil Procedure as that section applies only to applications made to the <ORG> "in execution of decrees for payment of money against the same judgment-debtor"; it is contended that <NAME>'s decree was not such a decree and that, therefore, the previous darkhast was not in accordance with law. The learned District Judge who has decided the first appeal has found this argument untenable on the following grounds. Though in other parts of the Code of Civil Procedure, for instance, in Order XXI, Rules 20 and 53 and Section 54 , a decree for money simpliciter is placed in contradistinction from a decree for sale in enforcement of a mortgage or charge, and though the view taken by both Sir <NAME> and <NAME> of the law would support this contention, he has held, following <NAME> v. <NAME> (1885) I.L.R. 11 Cal. 718, <CITATION> (1896) I.L.R. 20 Mad. 107 and <NAME> v. <NAME> (1905) I.L.R. 28 Mad. 473, F.B., that a decree by virtue of which money is payable is to that extent a "decree for money" (the phraseology used in Section 296 of the Code of 1882 under which these cases were decided), which expression the learned District Judge has apparently considered to be equivalent to the expression "decree for the payment of money " to be found in the present Section 73 . Other decisions ( <CITATION> (1897) I.L.R. 25 Cal. 580 <CITATION> (1899) I.L.R. 27 Cal. 285, <NAME> v. Sheobarat Rai (1894) I.L.R. 16 All, 418 and <CITATION> (1900) I.L.R. 22 All. 401) which appear to take a contrary view have been distinguished, on the ground that they were mostly cases under Section 48 of the present Code or the old Section 230 corresponding thereto, and that they were not cases under Section 73 . The learned District Judge has further held that under the sub-clause "thirdly" in Clause (3) of the proviso to Section 73 mete encumbraces which have been incorporated into decrees are contemplated and that under the sub-clause "fourthly" must be included "encumbrances which are merged in a decree," apparently including a decree for sale in enforcement of a mortgage or charge.

4. The learned District Judge has next relied on <NAME> v. <NAME> (1926) I.L.R. 53 Cal. 664, <CITATION> (1933) 36 Bom. L.R. 643, Firm Johar Mal v. Bindeswari Prasad  A.I.R. Pat. 522, <CITATION>  All. 97, <CITATION> (1909) I.L.R. 34 Bom. 189, s.c. 12 Bom. L.R. 13, <CITATION> (1912) I.L.R. 37 Bom. 42, s.c. 14 Bom. L.R. 861, <CITATION> (1918) I.L.R. 42 Bom. 420, s.c. 20 Bom. L.R. 421 and <CITATION> (1918) I.L.R. 43 Bom. 44, s.c. 20 Bom. L.R. 872, and held that as the application for rateable distribution conformed with the requirements of Order XXI, Rule 11, was accepted by the <ORG>, and was registered and duly disposed of, and as the <ORG> did not dispose of it on the ground that it was contrary to law, the relief asked for was one substantially in accordance with law, and that there was a mere inaccuracy in asking for the relief such as would not render it absolutely nugatory for purposes of limitation. "It was open to the <ORG> to decide either that the relief prayed for would fall under the clause 'fourthly' or under clause 'thirdly' and that would have been a decision on merits."

5. The prayer clause in darkhast No. 465 of 1934 was as follows :

Regular darkhast No. 324 of 1934 is pending against the defendants in this Court. Out of the sale proceeds that will be realised in that darkhast rateable distribution should be allowed for Rs. 3,433-3-4 the amount due under this decree; costs of these execution proceedings and future interest on Rs. 2,178 at 6 per cent. per annum till the date of repayment should be allowed.

6. The question is whether this is "an application made in accordance with law for execution or to take some step in aid of execution" within the meaning of Clause (5) of Article 182 of the Indian Limitation Act .

7. The contentions of Mr. <NAME> on the point of limitation may be thus summarised :

(1) A distinction has been made in the Code of Civil Procedure between decrees for payment of money (the expression used in Section 73 ) and decrees for sale in enforcement of a mortgage or charge (see Section 48 , Order XXXIV, Rule 11, Order XXI, Rule 20, Order XXI, Rule 11(1), Order XI, Rule 53 and Order XXXIV, Rules 4 to 6).

(2) <NAME> v. <NAME> (1885) I.L.R. 11 Cal. 718, <CITATION> (1896) I.L.R. 20 Mad. 107, and <NAME> v. Somasundram Pillai (1905) I.L.R. 28 Mad. 473, F.B., relied on by the learned District Judge, were all decided under Section 295 of the Code of 1882, where the expression used was "decree for money." In <NAME> v. <NAME>, the suit was under the last clause of Section 295 , corresponding to Clause (2) of Section 73 . and it had been filed before payment had been made to the wrong person. It was, therefore, held that the suit was premature, and the observations on which the learned District Judge has relied, therefore, appear to be obiter. " Decree for money " may mean something more than a decree for the payment of money and may include a decree under which money is recoverable, e.g. by sale or otherwise.

(3) <NAME>'s commentary at page 293 of the Code of Civil Procedure is against construing the expression "decree for payment of money" as including "decree for sale in enforcement of a mortgage or charge."

(4) There are several cases which construe the expression " decree for the payment of money," which occurred in Section 230 of the old Code, corresponding to the present Section 48 , e.g. <CITATION> (1897) I.L.R. 25 Cal. 580 and <CITATION> (1889) I.L.R. 27 Cal. 285 where decrees were similar to the one in <CITATION> (1896) I.L.R. 20 Mad. 107, and it was held that the decrees were not decrees for the payment of money. This construction of the expression cannot be brushed aside as inapplicable to cases falling under Section 73 .

(5) Sub-clauses "thirdly" and "fourthly" of Clause (3) of the proviso to Section 73 relied on by the District Judge do not support his interpretation.

(6) It is not enough that the application in darkhast No. 465 of 1934 should have complied with provisions, e.g. Order XXI, Rule 11, which prescribe the formalities to be observed in filing an application for execution, <CITATION> (1909) I.L.R. 34 Bom. 189, s.c. 12 Bom. L.R. 13 and <CITATION> (1912) I.L.R. 37 Bom. 42, s.c. 14 Bom. L.R. 861 show that the <ORG> must be competent to grant the relief asked for, and that the party applying must have the right to apply in the manner in question [see also <NAME> v. jani Bijai Shankar (1905) I.L.R. 27 All. 619.]

8. Mr. <NAME>'s answer to the above arguments is two-fold :

(1) The decree we have to deal with is an award decree and not a decree for sale in enforcement of a mortgage or charge. It is similar to a consent decree, and the relief asked for in the darkhast of 1934 was the realization of an amount of money, and this was within the decree. See <NAME> judgment in janardan v. <NAME> which was held to be correct in <CITATION> (1940) 43 Bom L.R. 26, F.B.. Both these were cases of consent decrees in terms similar to those of the present decree, and it was held in those cases that it was open to the decree-holder to seek to realize a part of his money claim without first proceeding against the mortgaged or charged property. The considerations which would apply to mortgage decrees would be inapplicable to an award decree such as we are dealing with : it is in form different from that of a mortgage decree.

(2) The formal requirements of law in filing the darkhast, such as those prescribed by Order XXI, Rule 11, were duly complied with in the application in darkhast No. 465 of 1934, and it was not dismissed on the ground that it was not in accordance with law. The question whether the decree was one for payment of money or not could only be decided after examining the nature and the meaning of that decree, i.e. it would be a question for trial on the merits. There are decided cases in support of both views. A possible inaccuracy or error in the mode in which the decree was sought to be executed, based on one of the two views which was well arguable, cannot make the application one not in accordance with law.

9. I propose to examine first the second of Mr. <NAME>'s arguments. If that is found acceptable, it would, it seems to me, render it unnecessary to examine the contentions of Mr. <NAME>.

10. Looking at the matter apart from authorities, it appears to me, in the first place, that a mere compliance with the formal requirements of the Code of Civil Procedure as to the manner of filing, and the particulars to be shown in, an application for execution would not suffice to make it an application in accordance with law. A decree-holder seeking enforcement of a money decree, e.g. might seek to bring to sale property not belonging to the judgment-debtor and not covered by the decree and yet might follow the requirements of O. XXI in framing his application. Such an application would on the face of it be one not in accordance with law. It also seems to me that the expression "not in accordance with law" cannot be construed so as to mean " not in accordance with law on the face of the application." Where the <ORG> has wanted to refer to a mistake or error apparent on the face of the record, it has made express mention of it, as in Order XLVII, Rule 1. No provision in the Indian Limitation' Act is based on such a qualification, which would appear to 'be altogether foreign to the kind of considerations that arise on a question of limitation. It, therefore, appears to me that the expression "in accordance with law" must have some reference to the material content, apart from the form and formal content, of the application for execution. The particulars of a written application for execution required to be shown are given in Order XXI, Rule 11(2), the tabular form-mentioned therein being Form 6 in appendix E to the Code. The most material particular is Clause (j), "the mode in which the assistance of the <ORG> is required." The last sub-clause under that clause is "(i) otherwise, as the nature of the relief granted may require." It seems to me essential that this mode must be one in accordance with law. In the present case the mode in which the <ORG>'s assistance was required was rateable distribution under Section 73 . If, therefore, the decree-holder was not entitled to ask for the relief in that "mode" and if the <ORG> had no power to grant such relief, it seems prima facie that the application would be one "not in accordance with law." With reference to the' last Sub-clause (v) of Clause (j) of O. XXI, Rule 11, Sub-rule (2), it is to be noted that Section 235 , Clause (j), of the Code of 1882, corresponding thereto required the application for execution to state "the mode' in which the assistance of the <ORG> is required as the nature of the relief sought may require" and not " as the nature of the relief granted may require," as in the present Code. This appears to be a material alteration; prima facie under the old Code even if the relief sought was not strictly claimable, yet the application would necessarily not be bad in itself, whereas under the present provision it has to conform to the nature of the relief actually granted by the decree.

11. Coming now to the authorities, we have' first two cases of this <ORG>, <CITATION> and <CITATION> , <CITATION> there had been a decree on June 30, 1900, ordering partition of immoveable property and making the execution of the decree conditional on the payment 6th the proper court-fees. On June 29, 1903, an application for the execution of the decree was made, but it was dismissed as it was not accompanied by the payment of court-fees. A second application to execute the decree was presented on June 27, 1906, accompanied by payment. The lower <ORG>s dismissed it on the ground that it was time-barred inasmuch as the first application made in 1903 had not been one in accordance with law as required by Article 179 of Schedule II to the Indian Limitation Act . In support of that order it was argued that the application of 1903 had asked the <ORG> to do what it was not competent to do, i.e. to make the partition without payment of court-fees. It was held that as payment was prescribed under the decree as a condition of partition, but not as a condition of the making of the application for partition, the application asked for something within the decree and was, therefore, in accordance with law, for it was competent to the <ORG> to order the execution to begin on the court-fees being paid within a certain period. <CITATION> the plaintiff obtained a decree against the defendants, and he sought to execute the decree by filing six darkhasts, all within time. The lower <ORG> held that the sixth darkhast was not filed within time, for the first five darkhasts could not be taken into consideration for purposes of limitation, as they had not been "in accordance with law," because every one of them had sought relief or reliefs which on considering' the merits of the darkhasts the <ORG> could not have granted. It was held that each of those darkhasts claimed the relief granted by and therefore within the decree and that the question whether on a consideration of all the facts the <ORG> could in the events that had happened grant the relief was only a question for trial on the merits. Their Lordships in that case were concerned with the construction of Article 179 of the Indian Limitation Act Of 1877, Clause (4), which contained the words "the date of applying in accordance with, law to the proper <ORG> for execution," etc. <NAME> pointed out the difference between Section 235(j) and the last words of Order XXI, Rule 11(2), Clause (j) "as the nature of the relief granted may require," and remarked (p. 49) :-

If a person other than one entitled to apply applies for execution, or if the person entitled applies for execution in a mode and for a relief outside the decree, the application is not in accordance with law for the plain reason that the decree of which execution is sought is not in reality the decree to which the application professes to relate but some other decree, one not existing and, therefore, incapable of execution according to law. The decree in such a case not existing, the application made as to it shares its fate and is treated as non-existent, Where, on the other hand a decree gives certain reliefs, and the application for execution seeks some or all of them, it may be that, after going into the merits of the application and considering on evidence all the circumstances and equities of the case, the <ORG> comes to the conclusion that the particular relief or reliefs sought shall not be granted. But that decision of the <ORG> on the merits cannot affect the application for the purposes of the question whether it is by itself in accordance with law, provided it meets in substance the requirements of the Code of Civil Procedure or any other law relating to execution.

The test applied, therefore, was whether the decree-holder applied in a mode and for a relief not outside the decree. <NAME> thought that the words "in accordance with law" were an adverbial qualification of the word "applying." "It is not even an application but it is the applying which must be in accordance with law." This appears to me to be too subtle a distinction hardly applicable to the phraseology adopted in the present Article 182. <NAME> added (p. 52) :-

On the other hand if it is to be said that a decree-holder is not applying in accordance with law merely because he asks for something, which under the decree the <ORG> cannot grant him, we are, I think, confronted, at least in all cases where the decree is complicated or intricate, with this difficulty that the question whether an applying is made according to law can only be decided by an adjudication of the application on its merits. I venture respectfully to doubt whether that is intended. If the applying complies with the forms and the procedure prescribed in that behalf, I should be disposed to say that the applying was in accordance with law, and not the less so, because, on the merits of the application, whether for one reason or another, the application had to be refused; nor do I think that the difficulty which I have mentioned is satisfactorily removed by any distinction between what appears on the face of the application and of the decree and what appears by a more careful consideration of those documents; for in practice I should doubt whether it would be possible to maintain any such distinction.

With great respect, it seems to me clear that at least so far as the present provisions of Order XXI, Rule 11, Sub-rule (2), Clause (j), are concerned, the <ORG> did not intend that a mere formal compliance' with the form and procedure prescribed should be enough : one indication of this appears to be provided by the amendment of the words "as the nature of the relief sought may require" by replacing the word "sought "by ".granted." I would interpret <NAME> dictum that the relief sought must not be "outside' the decree" as meaning that it must be within the power of the <ORG> to grant such relief as is sought, though in the particular case the relief may not in fact happen to be granted.

12. In <NAME> v. <NAME> (1926) I.L.R. 53 Cal. 664 the question that arose for consideration was whether an application returned to the decree-holder under Order XXI, Rule 17, for amendment and not filed within the time allowed by the <ORG> was an application in accordance with law, and their Lordships observed (p. 673) :-

...the expression 'in accordance with law' in Article 182(5) should be taken to mean that the application though defective in some particulars was such upon which execution could be issued. If the omissions were such as to make it impossible for the <ORG> to issue execution upon it, as was the case in <CITATION> (1890) I.L.R. 17 Cal. 631, where the list of the properties to be attached and sold was not supplied with the application for execution, it should be held that such an application is not in accordance with law. But where the application is such as to enable the <ORG> to take further steps in execution it cannot generally be said that such an application, if not defective in material and substantial matters is an application not in accordance with law.

<CITATION> (1892) I.L.R. 16 Mad. 142 <ORG> of Madras, following its earlier decision in <CITATION> (1883) I.L.R. 6 Mad. 250, held that an application for execution, if defective in matters which cannot be said to be material or substantial, should be considered to be an application in accordance with law. In Chattar v. <NAME> (1889) I.L.R. 12 All. 64 it was held that the term "applying in accordance with law" means applying to the <ORG>: to do something which by law that. <ORG> was competent to do; it did not mean applying to the <ORG> to do something which, either from the decree-holder's direct knowledge of facts or his presumed knowledge of law, he knew that the <ORG> was incompetent to do. This was followed in <NAME> v. jani Bijai Shankar (1905) I.L.R. 27 All. 619. <CITATION> (1933) 36 Bom. L.R. 643 though it was not necessary for the purposes of that decision to pronounce any opinion on the point, <NAME> expressed the view that in order to see whether a particular application for execution was or was not in accordance with law, what had to be looked to in each particular case was whether the executing <ORG> would or would not issue execution on the application for execution as preferred to it, and he approved of the test laid down in <NAME> v. <NAME> (1926) I.L.R. 53 Cal. 664.

13. From the above authorities the main test of an application for execution being in accordance with law would appear to be whether it is possible for the <ORG> to issue execution upon it, i.e. whether it is within the power of the <ORG> to grant the kind of relief asked for, though in the particular case the relief may not, on the merits, be granted, e.g. owing to some finding on facts, not to the nature of the application itself. I think, as I have already said above, that this is what was meant by <NAME> when he said that the relief sought must not be outside the decree.

14. The question, therefore, now arises whether, on such a test being applied, darkhast No. 465 of 1984 was an application made in accordance with law. In that application no notice was issued to the judgment-debtor and the <ORG> dismissed it as premature. The question whether it was an application in accordance with law was not raised in those proceedings, and it must, therefore, now be decided in the present darkhast. It may not be an easy question to decide, and there appear to be authorities both ways. That being so, it was obviously difficult for the decree-holder to know, if the question were put to him, whether the <ORG> had or did not have the power to grant the relief he was asking for. Prima facie, therefore, it does not appear fair or equitable that he should be exposed to the risk of having his application declared in a subsequent application for execution to have been an application not in accordance with law. But in a recent <ORG> decision, <CITATION> (1940) 43 Bom. L.R. 346, p.c. their Lordships quoted with approval the following remarks made in <NAME>'s Law of Limitation and Prescription (Tagore Law Lectures), 6th edition (1932), Vol. 1 (p. 256) :-

A law of limitation and prescription may appear to operate harshly or unjustly in particular cases, but where such a law has been adopted by the State,...it must, if unambiguous, be applied with stringency;...the rule must be enforced even at the risk of hardship to a particular party. The Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by it.

Their Lordships went on to remark (p. 369) :-

Very little reflexion is necessary to show that great hardship may occasionally be caused by statutes of limitation in cases of poverty, distress and ignorance of rights; yet the statutory rules must be enforced according to their ordinary meaning in these and in other like cases.

In Nagendranath De v. Sureshchandra De (1932) I.L.R. 60 Cal. 1, their Lordships remarked that in construing provisions as to limitation 'equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide.'

15. I will now take up Mr, <NAME>'s first contention that the relief asked for being the realization, of an amount of money was within the decree and was, therefore, such as the <ORG> was competent to give, the decree being similar to those in <CITATION> and <CITATION> (1940) 43 Bom. L.R. 26, F.B.. The decree in the present case was based on an award, the original claim being a money claim of Rs. 2,450. The decree said, in the first place, that the defendants should pay to the plaintiff the principal amount of Rs. 2,178 within five years from April 3, 1927, the interest accruing every year being payable every year and the interest which, had accrued till then, Rs. 272, being payable within a year. It then proceeded to state that if the defendants committed default in payment of this amount of Rs. 272 within a year, the whole amount payable to the plaintiff should be recoverable by sale of the immoveable property on which a charge for the whole amount was placed under the decree. "If that amount be insufficient," further declared the decree, " the amount of deficit should be recovered out of the remaining property of the defendants and from the defendants personally." This was followed by a somewhat similar provision which was to come into operation in case the annual amounts of subsequent interest were not paid in time, one month's grace for payment of such amounts being given. At the date of darkhast No. 465 of 1934, i.e. September 15, 1934, about six and a half years had elapsed from the date of the decree and only Rs. 300 had been paid. The decree-holder was, therefore, entitled to bring the whole property charged to sale. It seems to me clear that under the terms of the decree he was not then entitled to recover the amount due from the judgment-debtor in any other way. In <NAME> v. <NAME> there had been a consent decree passed in a mortgage suit under which the defendants were to pay annual instalments of Rs. 300, and in default of payment of any two instalments, the decree-holder was entitled to recover the whole of the amount then due by sale of the mortgaged property. Thereafter the decree ended with these words : "The whole of the sum due to the plaintiff should be paid up in instalments by paying Rs. 300 each year as above." The instalments provided for were not paid, and on the judgment-debtor's failure to pay two instalments, the decree-holder applied to the <ORG> for the sale not only of the mortgaged property but also of other property belonging to the defendants. It was contended for the judgment-debtors that the only remedy open to the decree-holder was to recover the whole amount by the sale of the mortgaged property only. <NAME> said (p. 956) :

I see no reason to limit the plain meaning of the decree as to the payment of the full amount in instalments by the provision as to the realisation of the full amount by the sale of the mortgaged property in default of the payment of any two instalments. The decree directs the defendants to pay the full amount, and the obligation is not in my opinion limited by the provision relating to the sale of the mortgaged property.

This was approved in the full bench case, <CITATION> , where the Chief Justice said (pp. 33-34) :-

But I cannot see any reason why one should apply the analogy of a mortgage decree to a consent decree, which must be construed according to the terms of the language used.... In arranging consent decrees of the nature in question, it is usually the creditor, and not the debtor, who is master of the situation, and I can see no justification for holding that, by taking a charge upon specific property, the primary object of which, as I have pointed out, is to secure him against other creditors, the creditor abandons his right to proceed against other property of the debtor. Such an abandonment should not be presumed in the absence of language making clear the intention to abandon.

16. The decree in the present case, however, is not a consent decree, in arranging which the creditor could be said to have been the master of the situation, so that he could not have abandoned the general right which he would have, under a money decree, of proceeding against any property of the debtor. The charge was created under the award on which the decree was based, and it seems to me unlikely that the arbitrators not only created such a charge for the benefit of the creditor but also left him the option of proceeding against any property of the debtors even though not covered by the charge. It appears to me that the part of the decree which we are dealing with is intended to operate in the manner of a final decree for sale under Order XXXIV, Rule 5, and that the part of the decree providing for the contingency of the sale-proceeds being insufficient to discharge the judgment-debtor's liability (corresponding to a decree passed under Order XXXIV, Rule 6) cannot be said to have yet become operative. It, therefore, seems to me that though the consent decrees in <CITATION> and <CITATION> might have been decrees for the payment of money, the ground on which they might be so construed is not available to the present decree-holder. For the purpose of construing the present decree with reference to the question whether it is a decree for payment of money within the meaning of Section 73 I think that it should be regarded as on the same footing as a decree for sale for enforcement of a mortgage or charge, and it is on this footing that the' decree has been dealt with in the <ORG> below.

17. Apart from the authorities, it is to be observed that a distinction appears to have been made in the Code between decrees for the payment of money and decrees for sale in enforcement of a mortgage or charge. Section 34 deals with cases in which the <ORG> may order interest "where and in so far as the decree is for the payment of money;" whereas Order XXXIV, Rule 11, deals with the question of interest "in any decree passed in a suit for foreclosure, sale or redemption." Section 48 , Sub-section (7), Clause (6), speaks of a decree or any subsequent order directing "any payment of money or the delivery of any property." Order XXI, Rule 20, makes the provisions contained in Rules 18 and 19 applicable to decrees for sale for enforcement of a mortgage or charge; and Rules 18 and 19 deal respectively with execution in the case of cross-decrees in separate suits for the payment of two sums of money passed between the same parties and execution in the case of cross-claims under the same decree for the recovery of sums of money by two parties from each other. <NAME>'s note under Rule 20 correctly, in my opinion, states that that rule shows impliedly that the expression "decree for the payment of money" and other similar expressions in the Code do not include a decree for the sale in enforcement of a mortgage or charge. Again, Sub-rule (1) of Order XXI, Rule 11, deals with the power of the <ORG>, where the decree is for the payment of money, to order, on the oral application of the decree-holder at the time of the passing of the decree, the immediate arrest of the judgment-debtor prior to the preparation of a warrant if he is within the precincts of the <ORG>. Such power obviously cannot vest in the <ORG> where the decree is for sale in enforcement of a mortgage or charge. This Sub-rule (1) corresponds to Section 256 of the Code of 1882, which begins thus : "When a decree is passed for a sum of money only, and the amount decreed does not exceted a sum of one thousand rupees the <ORG> may," etc, 'Order XXXIV, Rules 4 and 5, deal respectively with the preliminary and the final decrees in a suit for the sale of mortgaged property; and Rule 6 of the same order directs that where the net proceeds of any sale held under Rule 5 are found insufficient to pay the amount due to the plaintiff, the <ORG>, on application from him, may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for the balance. It is contended by Mr. <NAME> on behalf of the appellant, and rightly contended in my opinion, that only where such a decree is passed do we get. in a suit for sale of mortgaged property, a decree for the payment of money. In Order XXI, Rule 53, both the expressions are used : "where the property to be attached is a decree, either for the payment of money or for the sale in enforcement of a mortgage or charge," etc. We thus find throughout all the provisions a clear distinction drawn between the two kinds of decrees.

18. It is to be remembered that the expression "decree for the payment of money" is not to be found in Section 295 of the Code of 1882, corresponding to Section 73 of the present Code. The expression there' used was "decree for money." All the three cases relied on by the learned District Judge were decided in reference to the old section. The words "decree for money" are certainly not so precise as "decree for the payment of infancy" : they seem to be capable of meaning " decrees under which money is payable or recoverable."

19. The first case relied on by the learned District Judge, <NAME> v. <NAME> (1885) I.L.R. 11 Cal. 718, was a suit falling under the last clause of the old Section 295 , corresponding to Clause (2) of the present Section 73 . That suit having been filed before any payment had been made to a person not entitled thereto, it was dismissed as premature. That being so, the observations made in that decision on which the learned District Judge has relied must, in the first place, be strictly regarded as obiter. It was there held that the object of the section was to provide for rateable distribution amongst all persons who had obtained decrees ordering the payment of money to them by the judgment-debtor and that every decree by virtue of which money was payable was to that extent a "decree for money" within the meaning of that section, even though other reliefs might be granted by the decree. One ground for this view was thus stated (p. 730) :

If it were not so, and if the holder of a mortgage decree, or of any decree under which money was payable and other relief granted, was held not to be the holder of a decree for money, this result would apparently follow, that before he could claim rateable distribution he would be obliged to sue again for his money only. This could hardly have been the intention of the <ORG>.

With all respect, it seems to me that this argument is hardly justified in view of the provisions relating to secured creditors to be found in the three provisos to Section 73 . Besides, apart from the fact that the language of the old Section 295 under which this case was decided is not the same as that of the present Section 73 , it is to be noted that the decree with which the case was concerned contained a distinct order to the mortgagor personally to pay the amount of the mortgage debt. <CITATION> (1896) I.L.R. 20 Mad. 107 purported to follow <NAME>'s case, but the last feature was absent therefrom, the decree directing the mortgagor to pay the mortgage debt within the period fixed by the <ORG> and providing that on default the mortgaged property should be sold, the balance (if any) being recoverable from the mortgagor. The decrees in <CITATION> (1897) I.L.R. 25 Cal. 580 and <CITATION> (1899) I.L.R. 27 Cal. 285 were similar to the decree in <NAME>'s case, and those cases turned on the meaning of the expression "decree for the payment of money "which occurred in Section 230 of the Code of 1882, corresponding to Section 48 of the present Code; and it was held that the decrees were not "decrees for the payment of money" within the meaning of that section. The decision in <NAME> v. <NAME> (1894) I.L.R. 16 All. 418 and <CITATION> (1900) I.L.R. 22 All. 401 are also to the same effect. Sir <NAME> has remarked at p. 294 of his Code of Civil Procedure, 11th edition :

There is little doubt that if <ORG> were called upon to decide whether a decree of the character in the Madras case was a 'decree for the payment of money' within the meaning of this section, they would hold that it was not. In any event the Madras decision cannot be sustained under this Code : See Order 21, Rule 20.

It seems to me difficult to distinguish a construction of the expression "decree for the payment of money" occurring in Section 73 from that of the same expression in the old Section 230 , as the learned District Judge appears to have done. The wording of the present Section 48 , Sub-section (1), Clause (b), is, "Where the decree or any subsequent order directs any payment of money or the delivery of any property;" while the old Section 230 began thus : "Where an application to execute a decree for the payment of money or delivery of other property has been made under this section and granted." The phraseology used in the present section appears to supply the meaning of the expression in question; and I can see no good reason for supposing that that expression bears different meanings in the present Section 73 and the old Section 230 .

20. The third case relied on by the learned District Judge, <NAME> v. <NAME> (1905) I.L.R. 28 Mad. 473, F.B. is a full bench case which approved of <NAME>'s case and followed <NAME>'s case. The decree in that case contained an order for the sale of the mortgaged property and also an order for the recovery personally from the judgment-debtor and from his other property of what might remain undischarged by the sale-proceeds of the mortgaged property. The question for consideration was whether in execution of the decree the judgment-debtor could set up as a bar to execution an adjustment which had not been certified under Section 258 of the old Code; it had been held in <CITATION> (1901) I.L.R. 24 Mad. 412 that Section 258 was inapplicable to such a case. Their Lordships overruled <NAME>'s case and said : " Section 258 must be held applicable to cases in which decree is as here." Section 258 of the old Code corresponds to the present Order XXI, Rule 2, where the language used is : "Where any money payable under a decree is paid out of <ORG>." This case approved of and followed the dictum in <NAME>'s case that every decree by virtue of which money was payable was to that extent a decree for money. It seems to me, however, that the construction put on the language of the old Section 295 in <NAME>'s case is inapplicable to the words in Section 73 which we are now concerned with, and that, therefore, this case cannot be regarded as an authority for the purpose of construing those words.

21. The learned District Judge has also relied on sub-clauses " thirdly " and "fourthly" of Clause (c) of the proviso to Section 73 . In his opinion they go to show that Section 73 does not exclude holders of mortgage decrees from its operation, for under " thirdly" encumbrances which have not been incorporated into decrees are contemplated, while under "fourthly" are included encumbrances which have merged in a decree. Sub-clause "thirdly" is to the effect that the proceeds of sale shall, after the expenses of the sale have been met and the amount due under the decree under which the sale has been held discharged, be applied in discharging the interest and principal monies due on subsequent encumbrances (if any). That certainly does not make the holders of such encumbrances participants in the rateable distribution, which is dealt with in the next sub-clause "fourthly." Sub-clause "thirdly" guarantees the preservation of the interest of the holders of subsequent encumbrances in full, who would thus have no necessity for the benefits of the rateable distribution. As for the sub-clause "fourthly," that provides for rateable distribution among holders of " decrees for the payment of money " against the judgment-debtors who have applied to the <ORG> in conformity with the earlier part of Sub-section (1). This sub-clause, therefore, uses the same expression as is used in that part of the sub-section, and it would obviously be begging the question to say that it applies to holders of mortgage decrees. In my opinion, the arguments of the learned District Judge based on these two Sub-clauses cannot be sustained by the language and the scheme of the section.

22. In the result, it seems to me that the contentions of Mr. <NAME> must prevail over those urged by Mr. <NAME>, and it must, therefore, be held that the darkhast of 1934 was not an application for execution made "in accordance with law." That being so, the present application for execution, not having been made within three years from the date of the darkhast which immediately preceded that darkhast, is barred by limitation under Clause (5) of Article 182 of the Indian Limitation Act .

23. [After dealing with points not material to this report, the judgment concluded :] In the result, Mr. <NAME>'s contention on the point of limitation must be upheld, though his other contentions fail. The appeal will, therefore, be allowed, the orders of the lower Courts set aside and the darkhast must be dismissed with costs throughout.