GAURI SHANKER Vs. JAMILLUDDIN

JUDGEMENT

(1.) THIS is a second appeal arising out of an application made for the passing of a final decree under Order 34, Rule 5, Civil P. C.

(2.) IT appears that a preliminary decree under Order 34, Rule 1, Civil P. C. was obtained jointly by Cauri Shankar and Maharaj Din on the basis of a mortgage deed, in 1934. "usual six months time for payment was granted. This decree was subsequently amended under the Agriculturists' relief Act and intsalments were granted. In 1942 the plaintiffs-decree-holders applied for the passing of a final decree and when this application was pending an application for amendment of the decree under the U. P. Debt Redemption Act was made by the judgment-debtors. The decree was once again ordered to be amended under the Debt Redemption Act and an order was passed on the application of the decree-holders for a final decree in the following words : "decree has been amended. Consigned to records. Let the decree-holder file fresh application. ''

(3.) THIS order was passed on 11-7-1942. An application was made on 21-5-1945 for the sale of the mortgage property. This application was resisted by the judgment-debtors on the ground that the decree-holders could not ask for the sale of the property without first obtaining a final decree for sale under Order 34, Rule 5, Civil P. C. An application for the passing of a final decree was then made on 24-9-1945. The judgment-debtors contested that application and pleaded that the application was barred by time inasmuch as the decree amended on 11-7-1942, i. e. , more than three years before the date of the application for the framing of the final decree. This contention of the judgment-debtors found favour with the trial Court and the application was dismissed. The decree-holders then went up in appeal and the learned District Judge of Rae Bareli agreeing with the view taken by the trial Court dismissed the appeal. The decree-holders have now come up in second appeal.