GOPI LAL Vs. JAMUNA PRASAD

JUDGEMENT

(1.) This application in revision is preferred on behalf of the judgment-debtors against an order of the Subordinate Judge, 2nd Court, Patna, dated 26-6-1950, in an execution case.

(2.) An appeal has also been filed against the same order as a matter of precaution.

(3.) On 18-9-1926, the opposite party decree-holders obtained a mortgage decree which was later confirmed by the High Court in appeal. Several execution cases were taken out; but the last execution case was instituted in the year 1942. This was Execution Case No. 27 of 1942 in which the decree-holders claimed the sum of Rs. 2,749 and odd from the judgment-debtors concerned. The judgment-debtors preferred objections under Section 47, Civil P. C. on the ground that the execution of the decree was barred by limitation, and that no valuation was fixed under the Money-Lenders Act. The objections were overruled by the executing Court. Against this order, the judgment-debtors filed Misc. Appeal No. 31 of 1943 in the High Court. While the appeal was pending in the High Court, the properties were sold in execution on 14-5-1943, for a sum of Rs. 1,383.00. On 15-12-1944, the miscellaneous appeal was taken up for hearing in the High Court, On that date, the following order was passed: "By consent of parties, the decree under execution will be executable for Rs. 2,200.00 only which includes interest and costs up-to-date. In default of payment, this amount will carry interest of 6 p. c. p. a.". It is important to state that, on 26-2-1946, the decree-holders obtained delivery of possession through the Court of the properties which had been sold. It appears that, on 29-11-1948, the judgment-debtors deposited the money according to the terms of the consent order dated 15-12-1944. Shortly after, that is, on 22-2-1949, the judgment-debtors applied to the executing Court for being restored to possession of the lands which had been sold and of which the decree-holders had taken possession by a writ. This application was rejected by the Subordinate Judge, 2nd Court Patna, on 26-6-1950.