BALLABH DAS Vs. SHIVA PRASAD

JUDGEMENT

(1.) This appeal originally came up for hearing before V. Bhargava J., who refed. it to a Bench of two Judges for decision. The Bench in its turn refd. it to a F. B. in view of the importance of the question arising in the appeal.

(2.) Sheo Prasad and Ors executed a mtge. in favour of Ballabh Das & Madan Murari. A preliminary decree for sale on foot of this mtge. was passed in favour of the mtgees. on 21-12-1929, for Rs. 9,418-11-5. This decree was made final on 11-2-1938. Several unsuccessful applns. for execution were made from time to time by the D. Hs., but we are concerned only with the last two applns. One of such applns. was made on 7-7-1943, for recovery of Rs. 2,245-11-5 the share of Sheo Prasad only. The following day the office reported that the appln. was in conformity with the provisions of Order XXI Rule. 11, Civil P. C. In consequence of this report the order passed on 13th July was to register the appln. & to issue notice to the J. Ds. for 14th August. On this date, the J. Ds. appld. for time to file the objections. These objections were filed on 11th September, Under section 47, Civil P. C. They were ordered to be put up on 23rd October but the case was adjourned & ultimately the issues were framed on 11-12-1943. The case was fixed for disposal on 15-1-1944 but was adjourned to 19th February, when the attention of the Ct. was drawn to the fact that the appln. was signed by the mukhtar of the D. Hs. but was not verified by him. Thereupon the execution was consigned to record by agreement of parties.

(3.) On 15-8-1944, the J. Ds. appld. for amendment of the decree Under Section 151 & 152, Civil P. C. in respect of the amount. The amendment was granted on 21.12-1944, by reducing the decree to Rs. 8,183/13/6. The last appln. for execution on the basis of the amended decree was made on 3-2-1945,, for the proportionate sum of Rs. 843/7 due from Sheo Prasad. On 24th February Sheo Prasad filed the objection that the decree was time-barred.