L HAZARI LAL Vs. L RAM KUMAR

JUDGEMENT

(1.) This is a decree-holder's appeal. Four persons Siraj Ahmad, Abdul Salam, Shamsul Salam and Mt. Saidunnisa executed a simple mtge of three items of property on 31-5-1922, in favour of the applt L. Hazari Lal for rupees two thousand. One of the items of the mtged properties was a share in Patti Sabz Mahal Wazirunnissa. On 2-12-1926, the mortgagors, Siraj Ahmad & others, executed a second mortgage of all the three items of property in favour of Ram Kumar & Raghubir Saran, resps 1 & 2, for a sum of rupees four thousand. The entire mtge money due under the first mtge of 1922 was left in the hands of the mtgees to be paid to the prior mtgee, Hazari Lal. In 1931 a suit was filed on the basis of the first mtge the subsequent mtgees Ram Kumar & Raghubir Saran were impleaded as defts & a final decree for sale was obtained by Hazari Lal on 4-7-1936. During the pendency of this suit Ram Kumar & Raghubir Saran purchased, in execution of a simple money decree as against Saidunnissa, one of the mtgors, a portion of what has been described in the sale certificate as Mahal Sabz. There is controversy between the parties whether the property purchased under this sale certificate was part of the mtged property or not. According to the resps Ram Kumar & Raghubir Saran, it was part of the mtged property. On 2-1-1941, Hazari Lal applied for execution of the decree. This appln was dismissed for default. The date of dismissal is not material. On 8-7-1943, Hazari Lal filed a second execution appln. At this stage Ram Kumar & Raghubir Saran objected to the execution of the decree on the ground that the decree was barred by limitation. Their case was that the first execution appln made on 2-1-1941, was barred by limitation because it had been presented more than three years after the date of the final decree & that, consequently, the first execution appln could not be treated as a step in aid of execution in respect of the second execution appln.

(2.) On behalf of the applt it is argued that the execution appln was within time as he could not have executed the decree from 1-1-1938, to 31-12-1940, on account of Section 5, U. P. Temporary Postponement of Execution of Decrees Act X (10) of 1937. The reply of Ram Kumar & Raghubir Saran to this contention was that their case was covered by Section 6 (c) of that Act & that the decree could have been executed against them. Both the Cts below upheld the objections of Ram Kumar & Raghubir Saran & dismissed the execution appln as time barred. The decree-holder, therefore, has come up in second appeal to this Ct.

(3.) In holding that Section 6 (c) applies to the case the Cts below relied upon the fact that Ram Kumar & Raghubir Saran had taken a second mtge of the entire mtged property with a stipulation that the entire mtge debt due to Hazari Lal would be paid up by them.