BISHESHWAR DAYAL Vs. CHANDRIKA PRASAD

JUDGEMENT

(1.) This is a decree-holder's appeal arising out of an application for execution of a mortgage decree. The decree was obtained by the appellant in 1929 against the respondent Chandrika Prasad and one Arya Muni. Execution was taken of this decree off and on, until the last application was dismissed on 28th July 1987. On 1st January 1938, the U. P. Temporary Stay of Execution of Decrees Act (X [10] of 1937) came into force and remained in force upto 31st December 1940. Claiming an exclusion of this period the appellant again applied for execution of his decree on 28th July 1943.

(2.) Objections were taken to this application by the respondent on the ground that it was barred by limitation and also on the ground that the claim had already got discharged by reason of the decree-holder not proving his claim in certain proceedings under the Encumbered Estates Act. Those proceedings had been taken by the respondent Chandrika Prasad only Arya Muni, the other judgment-debtor, being impleaded as an opposite party. The execution Court held that the respondent judgment-debtor had been guilty of fraud, inasmuch as he had not disclosed this particular debt in the proceedings under the Encumbered Estates Act, and that, therefore, the application for execution was neither barred by time nor the claim had become discharged under Section 13 of that Act. In this view that Court disallowed the objections and proceeded to execute the decree.

(3.) On appeal the lower appellate Court while affirming the finding of the execution Court with regard to the judgment-debtor's fraud, took the view that the debt had in fact got discharged under Section 13 of the Act and that, therefore, it was not open to the decree-holder to apply for execution of the decree straightway in the civil Court.