SUKHANAND MATHURA PRASAD Vs. BAIKUNTH NATH

JUDGEMENT

(1.) This is a special appeal arising out of a decision made by Mr. Justice Mushtaq Ahmad by which decision the learned Judge modified an order of the court below when the order was made the subject-matter of an execution second appeal in this Court. While deciding the appeal Mr. Justice Mushtaq Ahmad granted leave to file a special appeal, and this is how this appeal is before us.

(2.) On the 18th April, 1934, the appellant firm Sukhanand Mathura Prasad obtained a decree for money in their suit No. 176 of 1933. The decree was for a sum of Rs. 4000/- odd. Applications for execution were made in respect of the decree, and we are concerned in this appeal with the application which was made on the 10th Oct. 1945. The question which falls for determination is one of limitation and for purposes of determining that question, or even for the purpose of understanding the question properly, it is necessary to state that there was a firm called Beni Ram Ganesh Prasad who had obtained a decree for Rs. 500/- odd in a Small Cause Court suit against firm Sukhanand Mathura Prasad and that Beni Ram Ganesh Prasad had attached the decree of Sukhanand Mathura Prasad which was under execution. Firm Beni Ram Ganesh Prasad applied that they be permitted to continue the execution application as a decree-holder of that execution and this was allowed. In this execution a house which had already been attached in the execution which had been initiated by firm Sukhanand Mathura Prasad was put up for sale and it was sold on the 20th July, 1939 for Rs. 680/- and it was purchased by firm Beni Ram Ganesh Prasad, the attaching creditor of Sukhanand Mathura Prasad. After giving credit for the amount of the decree the balance was filed in court and an order was made on the 24th October 1939 striking off this execution in part satisfaction.

(3.) After the sale Sukhanand Mathura Prasad filed objections to the sale on the ground that the sale could not take place inasmuch as the decree of the attaching creditor Bem Ram Ganesh Prasad had been stayed under the provisions of Act X of 1937 by an order dated the 8th October, 1938. The Civil Judge, who tried the objections preferred on behalf of Sukhanand Mathura Prasad, dismissed the objections on the 16th October, 1939. but on appeal against the decision of the Civil Judge the learned District Judge allowed the objections and set aside the sale by his order dated the 28th November, 1940. Beni Ram Ganesh Prasad brought up this decision of the learned District Judge to this Court in second appeal and the second appeal was dismissed by this Court on January 29, 1943, with the result that the sale which had taken place on the 20th July, 1939, was set aside and all consequences which follow on the setting aside of a sale came into being. The order of the 24th October 1939, whereby the execution case was 'struck off in part satisfaction also was put in jeopardy by the order made in the second appeal which affirmed the order of the District Judge referred to above by us.