KRISHNA MANINI MITTRA Vs. KALI KRISHNA TARAFDAR

JUDGEMENT

(1.) This is an application for execution of a decree, dated May 19, 1939. The application on the tabular statement was made on May 31, 1952, by the applicants is the executrices to the estate of the original decree-holder who died on May 29, 1949. As the dates will show, a period of more than 12 years has elapsed between the date of the decree and the date of the present application for execution. The outstanding point taken in defence by the judgment-debtor is limitation.

(2.) The decree, dated May 19, 1939', was made in Suit No. 950 of 1938 of this Court. It was a consent decree. As the nature of tin decree is material, I will set out briefly its main features. The consent decree was for under Section 6,000 and settled costs of Rs. 500-Its exact terms are-

(3.) In the tabular statement it is alleged "on July 8, 1940, the "judgment-debtor, through his brothers, paid Rs. 1,000 leaving "the balance sum of Rs. 4,600". The balance for which the present execution is made is for this sum of Rs. 4,600. These payments are disputed and denied by the judgment-debtor. The judgment-debtor denies that he ever made any payment on July 8, 1940 or on any other date either by himself or by any other person or through his brothers of any sum towards the decree-holder's claim or costs. The allegation of the applicants is that the judgment-debtor paid these sums through his brothers and that his brothers ultimately gave the decree-holder a security and a guarantee. On this point the applicants' case is that the three brothers of the judgment-debtor, namely, Shib Krishna Tarafdar, Benoy Krishna Tarafdar and Sunil Kumar Tarafdar, guaranteed payment of the sum of Rs. 4,600 due by the judgment-debtor and these brothers also deposited with the decree-holder the title' deeds of the premises No. 97/1. Taltala Lane, Calcutta, with intent to create security of their shares of the said premises for due payment of the said balance amount due under the decree. On May 30, 1952, a day before this application for execution, a suit was filed by the applicants for a mortgage decree in respect of the said premises-No. 97/1, Taltala Lane, Calcutta, against these three brothers of the judgment-debtor. In that plaint it was pleaded by the present applicants as Plaintiffs that on July 8, 1940, the brothers of the judgment-debtor agreed and guaranteed to pay the sum of Rs. 4,600 under the said decree and that the decree holder would not execute the decree for three months. On the facts as will appear now, more than three months expired long ago and it was not until May 30 and 31, 1952, that the attempt was made to execute the decree against the judgment-debtor and to enforce the guarantee against the judgment-debtbr's brothers. To complete the picture on facts, it must be stated that the applicants have already obtained a preliminary mortgage decree in that suit on March 27, 1953.