RATIKANTA PADHI Vs. RAMESH CHANDRA MOHANTY

JUDGEMENT

(1.) This appeal arises in execution of a mortgage decree and raises a question of limitation. The facts are as follows. The decree-holder is the appellant. The preliminary decree was passed on 4-1-39 against a father and his four sons. By the date of the final decree, the father, Chintamani died and one of the sons, Radha Charan also died. The decree-holder apparently was not aware of the latter's death. He obtained the final decree on 20-4-40, against the four sons, including the deceased Radha Charan who had died a few days prior thereto on 1-4-40. Thereafter the decree-holder applied in Execution Case No. 314/40 to execute the decree. Radha Charao's son, Harish Chandra intervened by an application under Section 47, C.P.C. in which he raised the objection that the final decree which was passed against his deceased father was not binding on him. The learned Munsif heard the objection in Misc. Case No. 98/41 and allowed it. He directed the execution to proceed only against the interests of the other three sons of Chintamani and not against the interest of Radha Charan, the father of Harish Chandra. The decree-holder thereupon filed an application for amendment of the final decree for the purpose of including the name of Harish Chandra as one of the judgment-debtors. But later on 26-1141, he filed an application for review and withdrew the application for amendment. This application for review was heard by the learned Munsif, who while holding the review to be competent dismissed it on 23-11-42 on the ground that it was barred by limitation, since it was filed after 90 days from the date of appellant's knowledge of Radha Charan's death. Against that decision of the Munsif, an appeal was taken to the learned District Judge who held that, in substance, the application was one for amendment and that the learned Munsif erred in thinking that the limitation of 90 days from the date of the knowledge of the death of Radha Charan applies to the facts of this case. He was of the opinion that the decree-holder had three years from the date of the preliminary decree for taking the necessary steps since this was really an application for the passing of a revised final decree as against Harish Chandra also. He accordingly allowed the appeal and directed the passing of the fresh final decree showing the applicant Harish Chandra also as a judgment- debtor. As against that appellate decision of the learned District Judge, a revision was taken to the High Court which was numbered as C. R. 192 of 1945. On appeal, the learned Judge of the Circuit Court, differed from the view taken by the learned District Judge and restored the decision of the Munsif thereby rejecting the review application. This was on 20-1-47. Thereafter the present execution petition was filed on 3-2-48 praying for execution of the decree against the interests of the three other brothers in the mortgage-decree. The question is whether this application is beyond title.

(2.) It is now necessary to state the history of the execution applications between the date of the final decree which was passed on 24-4-40 and the date of the present execution petition which was filed on 3-2-48. In between these dates there were two execution applications, viz., E. C. 314/40 and E. C. 144/46. Execution Case No. 314/40 was filed on the footing of the final decree as originally passed. That execution application appears to have been struck off on 26-10-41 after the decision of the Munsif dated 15-9-41, wherein he held that the interests of Radha Charan could not be sold in execution of the decree. Again, after the learned District Judge passed his order directing the passing of the fresh final decree and after the final decree in pursuance of that order of the District Judge was passed on 7-3-45, the decree-holder applied in Execution Case No. 144/46 for execution on the footing of the fresh final decree so passed. That execution was stayed by an order of the High Court dated 27-7-46 but was ultimately struck off on 19-11-47 after the decision of the High Court. The contention of the judgment-debtor is that the 2nd . Execution Case No. 144/46 was filed five years after the disposal of the Execution Case No. 314/40 and that therefore it was beyond time and that accordingly the present Execution Case No. 37 of 1948 filed on 3-2-48 is also beyond time. The judgment-creditor contended that since the proceedings taken by him for getting impleaded Harish Chandra, the son of deceased Radha Charan against whom the final decree was wrongly obtained were pending from 26-11-41 upto 20-1-1947, the whole of that period is to be excluded and also that the limitation for execution commences on 20-1-47 the date of the High Court's order in C. R. 192 of 1945, and that on that view the present execution application is in time.

(3.) Both the Courts below have accepted the judgment-debtor's contention and rejected the decree-holder's plea. They held that the execution was time-barred and hence the present appeal to this court.