PROMODE KUMAR ROY Vs. HIRENDRA NATH MUKHERJEE

JUDGEMENT

(1.) The question involved in this appeal and cross objection is whether the holders of a certain mortgage decree are entitled to execute it against one of their judgment-debtors and, further, whether they are entitled to execute it at all. In the appeal, which is by the decree-holders, they contend that they are not debarred from executing the decree against judgment-debtor No. 5 by a so-called award made under the Bengal Agricultural Debtors Act, as wrongly held by the Court below. In the cross-objection, which is by one of the remaining judgment-debtors, the contention is that execution of the decree is barred altogether by limitation.

(2.) The controversy between the parties has arisen out of the following facts.

(3.) On April 5, 1933, the appellants obtained a final mortgage decree against six judgment-debtors for an amount of Rs. 25,215-7-10. "The principal advanced on the mortgage was Rs. 18000/-. After obtaining the decree, the decree holders took out execution thrice, but were only able to realise the comparatively small sum of Rs. 1355-7-0/-. A fourth execution case was started on September 4, 1940, and when that execution case was pending, judgment-debtor No. 5, Hirendra Nath Mukherjee, made an application before the Kasimbazar Debt Settlement Board for a settlement of his debts. In his application he mentioned the decree held by the appellants but stated that he himself was liable for only Rs. 3,000/- out of the principal and that his subsisting liability was no more than Rs. 2000/-. On that application being filed, the Board issued the usual notice under Section 13(1) of the Bengal Agricultural Debtors Act, but as the decree-holders- neither submitted a statement of the debt nor produced their books of account, an order was made on June 20, 1942, under Section 13(2) of the Act by which the amount of the applicant's liability in respect of the mortgage debt was declare to be Rs. 2000/- as admitted by him. Thereafter, the decree-holders appeared to have bestirred themselves and made an application for review. The application filed and subsequent proceedings taken by the decree-holders by way of an appeal and then in revision ended with the same result. When the application before the Board was still pending, one of the decree-holders, namely, Tarit Bhusan Roy, died on March 17, 1944. No substitution of his heirs or legal representatives was made. An order for drawing up an award was made on November 15, 1944, and the award was actually drawn up on January 31, 1945. By that award the debt of judgment-debtor No. 5 in respect of this mortgage decree was declared to be Rs. 2000/- payable in twenty annual instalments,, commencing with Chaitra 1351 B. Section The application before the Board having been disposed of in the aforesaid manner, an intimation was sent to the executing Court on July 28, 1945, that the case had been disposed of The execution proceeding was thereupon resumed by the civil Court, but inasmuch as the decree-holders failed to take any steps, it was dismissed for default on 11-8-1945. Thereafter, on June 19, 1946, the decree-holders made-a fresh application for execution and it is out of that execution proceeding that the present appeal has arisen.