Vested right of execution under a repealed mortgage regime and acknowledgment-based extension of limitation preserved execution proceedings.

A mortgage decree obtained under the repealed Transfer of Property Act was treated as carrying a vested right of direct execution, so later Code of Civil Procedure procedure under Order XXXIV did not displace the earlier execution right. For limitation, the executable decree was assessed with reference to the court of first instance and Article 182, not Article 181. A purchaser pendente lite was bound by the proceedings, and his payment application was treated as an acknowledgment of liability, with the payment and acknowledgment operating to affect limitation. On that basis, the execution application was held not time-barred and the execution petition was restored for disposal according to law.

---

---

Issues: (i) Whether execution proceedings arising from a mortgage decree passed under the Transfer of Property Act continued to be governed by that Act after its repeal, or whether the procedure under Order XXXIV of the Code of Civil Procedure applied; (ii) whether the execution application was within limitation, including the effect of the later payment and acknowledgment by the purchaser pendente lite.

Issue (i): Whether execution proceedings arising from a mortgage decree passed under the Transfer of Property Act continued to be governed by that Act after its repeal, or whether the procedure under Order XXXIV of the Code of Civil Procedure applied.

Analysis: The decree-holder had acquired, under the repealed transfer of property regime, a right to proceed directly in execution when the time for payment expired. That right was treated as a vested right and was not taken away merely because the Code of Civil Procedure subsequently came into force. The later Code procedure did not convert an executable decree into one requiring a fresh final decree for the purpose of execution.

Conclusion: The proceedings remained governed by the Transfer of Property Act, and the decree-holder retained the right to continue execution under the earlier regime.

Issue (ii): Whether the execution application was within limitation, including the effect of the later payment and acknowledgment by the purchaser pendente lite.

Analysis: The executable decree was to be judged with reference to the court of first instance, and the relevant limitation framework therefore turned on Article 182 rather than Article 181. The purchaser pendente lite was bound by the proceedings against the recorded party, and his application seeking satisfaction of part of the decree amount contained an acknowledgment of liability. The payment and acknowledgment were sufficient to attract the provisions dealing with acknowledgment and payment as steps affecting limitation.

Conclusion: The execution application was not barred by limitation.

Final Conclusion: The appeal succeeded, the order of the lower Court was set aside, and the execution petition was restored for disposal according to law.

Ratio Decidendi: A mortgage decree obtained under a repealed enactment retains the procedural incidents and vested right of execution attached to it, and limitation for execution is to be computed with reference to the enforceable decree and may be extended by a valid acknowledgment or payment made in relation to the decree debt.

---