MEWA RAM Vs. PHUL CHAND

JUDGEMENT

(1.) This appeal is on behalf of a judgment-debtor whose contention was that the application for execution of the decree filed on 23-2-1943, was barred by time. The decree was passed on 20-5-1939, and it was admitted that the judgment-debtor was an agriculturist who was entitled to get the benefit of the Temporary Postponement of Execution of Decrees Act (Act X [10] of 1987). It was, however, urged that Mewa Ram, appellant, having purchased the property in execution of a simple money decree subject to the mortgage on the basis of which the decree in execution was obtained, he came under the exception in Section 6, Clause (c), Temporary Postponement of Execution of Decrees Act (Act X [10] 1937) and the decree being therefore executable against Mewa Bam, the period during: which the Temporary Postponement of Execution of Decrees Act remained in force could not be excluded in computing the period of limitation for an application for execution of the decree.

(2.) The relevant portion of Section 6 of the Act runs as follows:

(3.) The question of law which, therefore, arises for decision is whether Mewa Ram is a "transferee who has taken the transfer subject to the mortgage." In the sense that the mortgage was notified at the auction sale, he could be said to have taken the property subject to the mortgage but an auction-purchaser at a court sale does not undertake the liability to pay off the mortgage; the law is well settled that he can even dispute the validity of the mortgage or its existence though the mortgage might have been notified at the sale. Section 6 of the Act provides for a case where a subsequent transferee has taken the transfer subject to mortgage. Though the point did not directly arise, in a Full Bench decision of this Court, in Radha Kishan v. Umrai Singh, 1943 A. L. J. 333 : (A. I. R. (30) 1943 ALL. 316 F. B.) the Court, held that Clause (c) of Section 6, Temporary Postponement of Execution of Decrees Act refers to a case where the property has been purchased subject to an encumbrance with a stipulation that the transferee will be liable to discharge the encumbrance. The point directly arose in a Division Bench ruling of this Court in Ashfaqul Nabi Khan v. Raza Husain, 1947 A. L. J. 564: (A. I. R. (35) 1948 ALL. 62) The Division Bench held that