SARJIT SINGH KUNWAR Vs. DALIP SINGH

JUDGEMENT

(1.) This is judgment-debtors' execution first appeal. The brief facts are these. Sarvasri Girraj Singh, Digvijai Singh and Hariraj Singh had executed a simple mortgage dated 2nd of February, 1912 in favour of Sri Harnam Singh and his wife. Subsequently on 1-8-1912 they executed a deed of trust in respect of their whole property. One of the mortgagors, Hariraj Singh died in 1916. His property was taken over by the Court of wards and to the latter paid off his share of debt. Girraj Singh and Digvijai Singh executed another mortgage deed on 15-12-1917 in favour of Harnam Singh and his son. The mortgagees filed suit No. 40 of 1932 and a final decree was passed in February 1936. Thereafter on 24-4-1936 Digvijai Singh and his sons and Girraj Singh as trustee remade on application under Section 4 of the U. P. Encumbered Estates Act. That application was for warded by the Collector to the Special Judge 1st Grade, Bulandshahr. The application was ultimately disposed of on 5-2-1963. Thereafter on 4-8-1964 the decree-holder applied for execution of their decree. The judgment debtors filed an objection under Section 47 of the Code of Civil Procedure, inter alia, on the ground that the execution was barred by time. The learned Civil Judge, Bulandshahr, has repelled this contention on the view that the time spent in pursuing the application under the U. P. Encumbered Estates Act has to be excluded under Section 15 of the Limitation Act read with Section 9 (5) (a) and (b) of the U. P. Encumbered Estates Act. In the result the objection has been dismissed. Aggrieved, the judgment debtors have filed the present appeal. It has been submitted before us on behalf of judgment-debtor-appellants that Section 15 of the Limitation Act was not applicable inasmuch as there was neither any application nor any order passed staying the execution of the decree or issuing an injunction restraining the execution of the decree. After hearing counsel we are not inclined to accept this contention. Sub-section (1) of Section 15 of the Limitation Act, which is relevant for the present purpose, reads; "in computing the period of limitation for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of continuance of the injunction or order, the day on which it was issued or made and the day on which it was withdrawn, shall be excluded. " It is admitted that an application under Section 4 of the U. P. Encumbered Estate Act was given by Digvijai Singh and his sons and Girraj Singh as trustee. Girraj Singh had not joined that application in his personal capacity. The application under Section 4 was transferred to the Special Judge by the Collector under Section 6. The procedure which the Special Judge is required to adopt is contained in Section 9 of the Act. Where the liability of joint debtors is involved and they are not members of a joint Hindu family and all of them have not joined in the application under Section 4, provision has been made in sub- section (5) (a) and (b) of Section 9. It reads; "section 9 (5) (a ). If one or more of several joint debtors, who are not members of the same joint Hindu family, apply under Section 4 but all the joint debtors do not apply then the special Judge shall determine the amount of joint debt which is due by the debtor or debtors who have applied and the amount due by those who have not applied. For the purposes of this determination the special Judge shall make the joint debtors who have not applied parties to the proceedings and shall hear any objection that they may make before recording this finding. (b) If all the joint debtors have not applied under Section 4 the creditor shall have a right to recover from the debtors who have not applied only such amount on account of the joint debt as may be determined by the Special Judge to be due by them. " It would appear, therefore, that the decree-holders could have applied for execution against Girraj Singh only after the joint debt had been apportioned in between him and the other debtors who had applied under Section 4 of the Act. It may be noticed that when an application is given under Section 4 of the Act and it is forwarded by the Collector to the Special Judge, the decree in existence, if any, become in executable for the time that such an application is decided. Where there are joint debtors and only some of them have applied and some have not applied the creditor can proceed only against those debtors who have not applied but only after the joint d. bt has been apportioned. On this view, we do not think that any specific order was required staying the execution of the decree or issuing an injunction restraining the execution of the decree for the application of Section 15 (1) of the Limitation Act. In our opinion the Court below has been right in holding that Section 15 (1) of the Limitation Act read with Section 9 (5) (a) and (b) of the U. P. Encumbered Estates Act, saved the time which was spent in the proceedings under Section 4 of the U. P. Encumbered Estates Act. The execution application was thus not barred by time. The appeal hence fails and is dismissed with costs to the decree-holders. The stay order is discharged. .