PREM RAJ Vs. RAM CHARAN

JUDGEMENT

(1.) KARIYA and his wife Seva purchased the house in dispute by a registered deed on 20/04/1905. KARIYA died in 1936 leaving behind him Seva and Ram Charan, his son. On 16/08/1951 Ram Charan mortgaged the house to Prem Raj (the appellant). Prem Raj obtained a preliminary decree for foreclosure on 16/08/1952 and also the final decree on July 16, 1953. In the meanwhile on 7/03/1952, Seva gifted the entire house to Prakash Chandra, son of Ram Charan, the respondent. Fortified by this gift, Prakash Chandra frustrated several attempts of the appellant to get possession of the house in execution of his decree. He made three unsuccessful attempts to execute the decree till the end of 1954. He made the fourth attempt on 25/04/1956. Shortly thereafter, on 7/12/1956, Prakash Chandra instituted a suit against the appellant and his father Ram Charan for a declaration that the preliminary and final decree for foreclosure in favour of the former were not binding on him and for a perpetual injunction restraining the appellant from taking possession of the house in execution of the aforesaid decree. The suit was dismissed on 25/11/1958. He filed an appeal and obtained an order staying execution of the decree on 31/12/1958. The appeal court partly allowed his appeal on 21/10/1959. It was held that he was the owner of a half share in the house by virtue of the gift deed from Seva in his favour. So the appeal court issued an injunction restraining the appellant from executing his decree with respect to a half share in the house. The appellant filed a second appeal in the High Court of Madhya Pradesh against the judgment of the appeal court. Prakash Chandra also filed a cross-objection in respect of his claim for the remaining half share in the house. Both the appeal and the cross-objection were dismissed by the High Court on 1/01/1962.

(2.) TURNING back to the fourth execution application filed by the appellant, it was dismissed on 23/06/1956. The fifth execution application was filed by the appellant on 28/07/1964 for possession over half of the house. The respondent objected to this application on the ground of limitation. The objection was disallowed by the execution court as well as by the appeal court. It was, however, upheld by the High Court of Madhya Pradesh. So the application was dismissed as time-barred. Hence this appeal.

(3.) WE shall consider these arguments in seriatim. But before we do so, it is necessary to read the relevant provisions of Article 182: <FRM>JUDGEMENT_1_2_1974Html1.htm</FRM>