DURGA PRASAD Vs. DALPAT RAM

JUDGEMENT

(1.) This is a D-H's. appeal arising out of execution proceedings. The decree sought to be executed was a mortgage decree for sale on the basis of a mortgage deed of 1925. A suit in forma pauperis was filed on the basis of a prior mortgage & ultimately the mortgaged property was sold for payment of the amount due to Govt. on account of court-fee & was purchased by Dalpat Singh respondent for a sum of Rs. 137. When the suit on the basis of the mortgage deed of 1925 was filed by the D.H. Dalpat Singh was impleaded as a subsequent transferee. His defence was that he was not a subsequent mortgagee, but was a prior charge holder. It was held that he was a prior charge holder to the extent of Rs. 137 & the suit was decreed for sale of the mortgaged property subject to the payment of Rs. 137 to him. This decree was made final on 20-10-1934.

(2.) The first execution application was made on 24-4-1937. One of the J. Ds. had died & in the application his heirs had been impleaded. The Court required the D.H. to file an affidavit in support of his allegation. This affidavit was not filed & ultimately on 28-5-1937 the application was dismissed for default. On 7-9-1938 an application was made by the D.H. alleging that the record of the execution case had been consigned to the record room & that it may be sent to the Collectorate for proceeding with the sale of the property. This application was dismissed for default. The D. H. then made a second execution application on 1-9-7-1941. Dalpat Singh respondent filed an objection that the application for execution was time barred. The D. H. replied that limitation was saved on two grounds, firstly, that U. P. Act No. X [10] of 1937 prevented him from taking out execution against J. Ds. who were agriculturists within the meaning of that Act; & secondly, that the application of 7-9-1938 was a step-in-aid of execution & limitation was to be counted from the date of its dismissal. Dalpat Singh's case was that Section 6 of Act No. X [10] of 1937 permitted the D. H. to take out execution as the property was in his hands, he being a subsequent transferee & further that the application of 7-9-1938 was not a step-in-aid of execution. The execution Court allowed the objection & dismissed the execution application. This order was confirmed by the lower appellate Court. The D. H. has now come up in second appeal to this Court.

(3.) Three points have been urged before us firstly, that Dalpat Singh was a transferee of a part of the mortgaged property & not of the whole & as such Section 6 of Act x [10] of 1937 did not apply; secondly, that Dalpat Singh was not a subsequent mortgagee who could be said to have taken the transfer subject to the mortgage, within the meaning of that section, & thirdly, that the application of 7-9-1938 was a step-in-aid of execution & saved limitation.