1. This is an appeal by the decree-holder against an orderof dismissal of an application for execution of a mortgage decree. The decreewas obtained by her predecessor on the 3rd May 1895, and was affirmed on appealto this Court on the 6th December 1807. The present application for executionwas made on the 26th August 1910. The judgment-debtors contended in the Courtbelow that under section 48 of the Code of Civil Procedure of 1908, no orderfor execution could be made upon this application presented after theexpiration of twelve years from the date of the decree sought to be executed.The Subordinate Judge has given effect to this objection and dismissed theapplication. On the present appeal by the decree-holder it has been argued thatthe application for execution is governed, not by section 48 of the Code of1908 but by section 280 of the Code of 1882 which was in force when the decreesought to be executed was made.

2. Before we examine the validity of this contention, it maybe stated that the decree was made in a suit to enforce a mortgage security.The Court made the usual decree for sale, and then added that, should anyportion of the decretal money be left unsatisfied after the sale of themortgaged properties, the balance due will be realised from the otherproperties of the defendant. Consequently, the decree was a combined decree forsale and a personal decree. The decree-holder took out execution and had themortgaged properties sold which were purchased by her on the 8th August 1901.On the 23rd April 1903, she applied under section 90 of the Transfer ofProperty Act for a personal decree. That application was refused on the 27thApril 1903 on the ground that as the original decree embodied a personaldecree, no separate decree could be drawn up under section 90 of the Transferof Property Act as laid down in the case of Dina Nath Mitter v. Bejoy KrishnaDas : 7 C.W.N. 744. The decree-holder then proceeded toexecute the personal decree, and, it is admitted that properties not includedin the mortgage security were sold in 1905. The decree holder now seeks toproceed against other properties of the judgment-debtors. If section 48 of theCode of 1903 be held applicable, the application made on the 26th August 1910,for execution of the decree made on the 6th December 1897, must obviously fail;because under rule 7 of Order XX of the Code the date of the decree is the dateon which the judgment was pronounced, although the precise amount for which thedecree-holder was entitled to proceed personally against the judgment-debtor inthis case, was not ascertained till the mortgaged properties had been sold. Toescape this difficulty the appellant contends that clauses (c) and (e) ofsection 6 of the General Clauses Act, 1897, indicate that section 230 of theCode of 1882 applies to the present proceeding. "Before we examine thisargument, we may recall to mind that with reference to section 230, it had beenruled by this Court in Fazil Howldar v. Krishna Bundhoo Roy :25 C. 580 : 2 C.W.N. 118 and Kartick Nath v. Juggernath Ram 27 C. 285 inconformity with the decision in Ram Charan v. Sheobarat Roy 16 A. 418 : A.W.N.(1894) 142 but contrary to the decision in Kommachi v. Pakker 20 M. 107 : 7M.L.J. 66, that mortgage decrees were not within the scope of this provision ofthe law. The appellant has, consequently, endeavoured strenuously to attractthe operation of section 230 of the Code of 1882 to her case, but we must holdthat the attempt has signally failed.

3. Clause (c) of section 6 of the General Clauses Act, 1897,provides that when an enactment has been repealed, unless a different intentionappears, the repeal shall not affect any right acquired under the repealedenactment. Clause (e) provides that such repeal shall not affect anyinvestigation, legal proceeding or remedy in respect of any such right asaforesaid. It is plain that clause (e) refers back to clause (c) and must beread along with it, so that the right which is not affected by clause (e) mustbe a right as described in clause (c). Now, it is obvious, that thedecree-holder in the case before us did not acquire a right under the repealedenactment. She was entitled to execute the decree in accordance with theprovisions of the Code of 1882 so long as it was in force; but she hadobviously no vested right in the procedure prescribed by that Code. The right shehad, was created by the mortgage-bond; that right subsequently merged in thedecree made in her favour. It cannot reasonably be argued that she had a rightacquired under the Civil Procedure Code of 1882. We must consequently hold thatsection 48 of the Code of 1908 is prima facie applicable to the case before us,and it cannot be disputed that the language of that section is comprehensiveenough to cover it completely. Sub-section (1) of section 48 provides thatwhere an application to execute a decree, not being a decree granting aninjunction, has been made, no order for execution of the same decree shall bemade upon any fresh application presented after the expiration of twelve yearsfrom the date of the decree sought to be executed. This plainly applies to afresh application presented after the Code of 1908 came into force. We haveconsequently only to consider whether a different intention appears from theprovisions of the Code. From this standpoint, it is worthy of note that theCode of 1908 became law on the 21st March 1908, but did not come into operationtill the 1st January 1909. Consequently all decree-holders in the position ofthe appellant had ample opportunity to apply for execution of their decrees inaccordance with the Code of 1882 during the interval between the 21st March and31st December 1908. If they failed to do so, they cannot legitimately complainof hardship or unfairness. The case before us shows conclusively that theconstruction we adopt, does not cause any hardship to the appellant, becauseshe would have been in time if she had applied for execution at any time beforethe 6th December 1909, that is, she could have applied and no objection couldhave been taken on the ground of limitation even long after the new Code hadcome into operation. We hold accordingly that the Code of 1908 applied to thepresent proceedings and that section 48 is a bar to the grant of theapplication. The view we take is in accord with that adopted by this Court inthe cases of Manjuri Bibi v. Akkel Mahmud 19 Ind. Cas. 793 [LQ/CalHC/1913/152] : 17 C.L.J. 316 andBisseshur Sanamat v. Jasoda Lal Chawdhry : 19 Ind. Cas. 391 [LQ/CalHC/1913/159] :17 C.W.N. 622.

4. The result is that the order of the Subordinate Judge isaffirmed and this appeal dismissed with costs. We assess the hearing fee atthree gold mohurs.

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Jaimangalbati Misrainvs. Badan Chand Das (06.05.1913 -CALHC)