DINAMANI DAS Vs. BIMBADHAR PADHAN

JUDGEMENT

(1.) The appellants in this appeal are some of the judgment-debtors and the substituted legal heirs of the deceased judgment-debtors in Title Suit No. 81/48 which was a suit for foreclosure of a mortgage bond. The original judgment- debtors by a petition under Sections 47, 48 and 151 C.P.C. challenged the maintainability of the Execution Case No. 47/70 on the ground that the same was barred under Section 48 C. P. C. and Article 36 of the Limitation Act. That petition was registered as Misc. Case No. 90/70, and by order dated 24-8-73 the learned Subordinate Judge, Kendrapara dismissed the said petition with costs. The judgment-debtors thereupon preferred an appeal against the said decision, and the Additional District Judge, Cuttack, by his order dated 4-5-74 in Misc. Appeal No. 69/73 also dismissed the said appeal with costs. This appeal has been preferred against the said order.

(2.) The preliminary decree in the suit (T. S. No. 81/48) was passed in favour of the plaintiffs on 17-3-49. The final decree, directing the defendants to deliver possession of the mortgaged property to the plaintiffs, was passed on 18-11 53. After the final decree was drawn up, the judgment-debtors filed an application under Section 11 of the Orissa Moneylenders Act which was allowed, and the court directed amendment of the final decree. In spite of the said order, the final decree drawn up previously was not amended. On 22-2-56 the plaintiffs-decree-holders filed Execution Case No. 59/56 to execute the final decree. The judgment-debtors filed a petition in the said execution case under Section 47 C.P.C. That petition having been dismissed the judgment-debtors filed Misc. Appeal No. 47/56, and the appellate court directed amendment of the preliminary decree as also the final decree, and dismissed the aforesaid execution case on that ground. The preliminary and the final decrees were accordingly amended on 4-12-56 and 19-12-56 respectively. Thereafter the decree-holders again levied execution of the amended final decree on 5-8-57. But on the application of the judgment debtors under SECTION 47 and 151 C.P.C. the executing court held that the preliminary decree and the final decree were not in the proper form. The decree-holders' appeal against the said order was dismissed. On the above finding that the preliminary and the final decrees were not in the prescribed form, the said decrees were amended on 13-9-65. The judgment-debtors again preferred objection against the amended decrees and that matter and matters connected therewith remained pending in different courts for a long time, and ultimately a fresh final amended decree was drawn up and signed on 23-6-70. Soon thereafter the present execution case was levied on 26-6-70, but as Title Appeal No. 58/70, filed by the judgment-debtors against one of the previous orders of the executing court, was pending, this execution case was stayed at the instance of the judgment-debtors. After the dismissal of Title Appeal No. 58/70, the judgment-debtors filed a petition under Sections 47, 48 and 151 C.P.C. in the executing court. On the dismissal of that petition by that court and the appellate court this appeal has been preferred.

(3.) According to the judgment-debtors, the appellants in this appeal, the execution case filed by the decree-holders in 1970 is barred by limitation in view of the provisions of Section 48 C.P.C. as the same was not filed within 12 years of the date of the final decree, which according to the judgment-debtors is 18-11-53. (This case relates to the period when Section 48 C.P.C. was in force). The above objection has been overruled by both the courts below.