PURUSHOTTAM GANAPATH MEHATA Vs. RAJARAM DHONCICHAND SHAHA

JUDGEMENT

(1.) THE only question involved in this appeal is one of limitation and it arises in this way. On November 30, 1948, in proceedings commenced under the provisions of the Deccan Agriculturists Relief Act there was a decree. That decree provided for two matters. It provided for the redemption of a mortgage created either by the plaintiffs or their predecessors -in -title. The other matter of which it provided for was a sale, if there was no redemption, for the recovery of a sum of Rs. 11,403 -9 -0 together with interests thereon determined to be payable to the defendant in that suit. The plaintiffs did not redeem the mortgage and so, the defendant executed the decree. The execution application with which we are concerned in this appeal was one presented on January 20, 1954. It was stated by the decree -holder in the execution application that the execution application was within the time since there was an acknowledgment of the decree on August 14, 1951, through the payment of a sum of Rs. 10,000/ - paid by a certain Mr. M.M. Gandhi. This payment was denied by the Judgment -debtor and so the matter was posted for evidence on March 10 1955 to April 2, 1955. There were at least 20 adjournments of the proceedings and the date of 21st adjournment was March 16, 1956 on which date, the judgment -debtors were absent and their pleader retired for want of instructions.

(2.) THE decree -holder examined himself and in addition, he examined Mr. M.M. Gandhi, who according to the decree -holder, had to paid a sum of Rs. 10,000/ - on August 14, 1951 towards the decree. The evidence given by the decree -holder was that the payment of a sum of Rs. 10,000/ - was made by Mr. M.M. Gandhi on August 14, 1951 by means of a bank draft drawn on the District Central Co -operative Bank and which was endorsed in his favour by Mr. Gandhi.

(3.) THE Civil Judge refused to believe the evidence given by Mr. Gandhi and accepted that given by the decree -holder and so recorded a finding that the execution application was not barred by limitation. He directed the execution to proceed. The Judgment -debtors appeal.