RAMDASS PRASAD Vs. RAGHUBIR CHAND SONI

JUDGEMENT

(1.) This appeal is against an order of the Subordinate Judge, Darjeeling dismissing an application under Section 47 of the Code of Civil Procedure by which the judgment-debtors objected to the execution of a decree as prayed for in an application made on the 10th September, 1954. The prayer there was in these words:

(2.) Before us also the main contention pressed on behalf of the appellant is that the application is barred by limitation. Another point which was also raised was that the fresh decree drawn up by the Subordinate Judge on the 4th June 1945, did not contain any direction that in default of payment of any one last the mortgaged property will be liable to be restored to the decree-holders. If one confines oneself to the decree as drawn up on the 4th June, 1945, only, this criticism would appear to be correct. It is necessary, however, to remember that when drawing up the decree on the 4th June, 1945, the learned Subordinate Judge made it clear that this was being done in pursuance of the orders-passed by the Hon'ble High Court on the 5th January, 1945, and that the High Court decree itself had said that this would be in modification of the original decree that had been drawn up. It is, in my opinion, reasonable to read this decree of the 4th June, 1945, as not complete in itself but as merely a modification of the decree as previously drawn up. It becomes clear therefore that the direction given in the original decree that "default of any one kist would make the mortgaged property liable to be restored to the decree-holder auction purchaser again" was being continued in the fresh decree.

(3.) This brings us to the real objection raised in this case, namely, that the application is barred by limitation inasmuch as it was made beyond three years from the date of the first default. A number of cases were cited before us but I find it unnecessary to refer to them in detail. The rule that is dearly laid down in all those cases is that in every case the decree itself has to be construed in order to arrive at a proper conclusion as to the effect of the default clause. The real question is when the first default took place and the decree-holders became entitled to be restored to possession of the property, did the clause for restoration exhaust itself? If it did, then the time for execution would run from the date of the first default and an application for execution made beyond three years from that date would be barred. If, however, the direction did not exhaust itself on the first default but on the second and third default and thereafter on each default, a fresh right to be restored to possession came into existence, the application for execution within three years from the date of the last default would be maintainable. In 54 Ind App 272: (AIR 1927 PC 146) (A), the decree provided that certain properties were to remain in possession of the defendant who could pay to the plaintiff annually the sum of Rs. 2000/- in the month of Kason and in default of payment of the same, the said property would be made over to the plaintiff. One of the questions raised was whether, as regards delivery of possession, the application made beyond three years from the date of the first default, was barred. Dealing with this question, Lord Carson, delivering the judgment of the Privy Council, observed: