BALJIT SINGH Vs. J I CUNNINGTON

JUDGEMENT

(1.) This appeal is directed against an order of the First Civil Judge, Meerut dated November 16, 1962 under Order 34, Rule 5 (3) of the Civil P. C.

(2.) The facts relevant briefly stated are that the Bank of Upper India Limited (since liquidated), instituted O. S. No. 100 of 1927 in the Court of Sub Judge, Meerut for recovery of a sum of Rupees 23.993-68 besides interest on the basis of a mortgage deed dated July 13, 1927. The property mortgaged comprised of share to the extent 2/5 in the zamindari properly situate in villages specified in Schedule 'A' and. 2/5 share for bungalow No. 245 situate in Cantonment Area, Meerut besides mango trees in the compound referred to in Schedule 'E' to the plaint, The suit was decreed by the trial court on December 22, 1928 A preliminary decree was passed under Order 34, Rule 4 C. P. C. and the time granted to the judgment-debtors for payment of the decretal amount was up to June 22, 1929. The first Appeal No. 136 of 1929 filed by the defendants against the preliminary decree was dismissed by the High Court on May 14, 1936. Some of the judgment-debtors filed an application under Section 4 of the U. P. Encumbered Estates Act, 1934 on October 28, 1936. The decree-holder applied for the preparation of a final decree under Order 34, Rule 5 (3) C. P. C. on May 7, 1948 since there had been no payment made in terms of the decree by the judgment-debtors. On August 9. 1952, appellant-Brigadiar Baljit Singh (since dead) made purchase of the bungalow No. 245 from Smt. Sarswati Devi by a registered deed for a consideration of Rs. 20,000/-. The preliminary decree dated 22-12-1928 was also obtained by him under assignment dated November 28, 1957 from the decree-holder. The application under Section 4 of the U. P. Encumbered Estates Act, 1934 (hereinafter referred to as the Act) was rejected on February 21, 1959. The application made under Order 34, Rule 5 (3) C. P. C. was opposed by the appellant on the ground that this was barred by limitation, the property referred to in the preliminary decree had ceased to exist and also that he is entitled to the benefits under Section 41 of the Transfer of Property Act. The objections were rejected and the applications for the preparation of the final decree was allowed by the court below under the impugned order. This appeal was decided by a learned single Judge of this Court ex parte on April 17, 1979. The application to set aside the ex parte order was rejected. In appeal filed by the appellant, the order was reversed by the Supreme Court on May 4, 1982, and this Court was directed to dispose of the appeal on merit

(3.) Sri A. D. Prabhakar, learned counsel for the appellant, has raised twofold contentions before me in support of this appeal :-- (1) The application made by the decree holder on May 7, 1945 under Order 39, Rule 5 (3) C. P. C. was barred by limitation in view of the provision, contained in Article 181 of the Schedule to the Limitation Act, 1908; and (2) The properly under the mortgage referred to in the preliminary decree having ceased to exist there could be no, final decree for sale drawn in respect thereof.