SARVAMONGALA DASI Vs. PARITOSH KUMAR DAS

JUDGEMENT

(1.) THIS is an appeal by the plaintiff or, as the appellant chooses to say, the applicant in proceedings under Section 36(1), Bengal Money -lenders Act. The appellant raised money on a mortgage from the predecessor -in -interest of the respondents. The latter instituted a mortgage suit and obtained a preliminary decree for sale on 24 -5 -1939. The decree was made final on 12 -9 -1939. Thereafter the decree -holders started proceedings in execution and prayed for realisation of the decretal dues by a sale of the mortgaged properties. The mortgaged properties were sold on the 15th of February, 1940, and were purchased by the decree -holders. Thereupon the decree -holders, auction -purchasers, applied for possession and possession was delivered to them on 20 -6 -1940. It does not appear that thereafter any further proceedings were taken by the decree -holders or by the auction -purchasers. The Bengal Money -lenders Act having come into force on 1 -9 -1940, the appellant, judgment -debtor in the execution proceedings, made an application for relief under Section 36, Bengal Money -lenders Act, on 10 -8 -1946. The applicant prayed for the reopening of the mortgaged decree and for payment of the sum in instalments and for restoration of possession of the mortgaged properties which were acquired by the decree -holders in consequence of the execution of the mortgage decree.

(2.) THE respondents raised certain defences, the principal defence being that the application for relief under the Bengal Money -lenders Act was not available to the present appellant and that his right to relief was barred by the one year's rule of limitation contained in Section 36(6)(a)(ii), Bengal Money -lenders Act.

(3.) THE respondents preferred an appeal. The appeal was heard by the learned District Judge, Howrah. The learned Judge was of the opinion that the present proceedings were barred under Article 120, Limitation Act. In the result the proceeding initiated by the appellant was dismissed. It is the propriety of this order which is challenged in this appeal.