SIDHESHWAR PRASAD SINGH Vs. RAM SAROOP SINGH

JUDGEMENT

(1.) These two appeals have been heard analogously, as common question of law is involved, but the facts, being different, have to be stated separately. Miscellaneous Appeal 110 of 1961.

(2.) The respondents instituted a suit in the Court of the Subordinate Judge, Gaya, to enforce six mortgages in respect of proprietary shares in village Dharnai Madanpur, tauzi No. 3739 which included bakasht lands also. The suit was decreed on contest and a preliminary decree was passed on 15-11-1951. Against that decree, the appellants preferred on 20-3-1952 a First Appeal in this Court numbered as First Appeal 87 of 1952. During the pendency of this appeal, the preliminary decree was made final on 1-8-1953. On 23-9-1953, the respondents presented an application for execution of the final decree, numbered as Execution Case 11 of 1953. In the meantime, the Bihar Land Reforms Act, 1950 (hereinafter referred to as the Bihar Act), came into force, and by virtue of a notification published under Section 3-A of the Bihar Act, the instant estate passed to and became vested in the State on 26-1-1955. On 25-7-1955, the decree holders respondents filed an application under Section 14 of the Bihar Act, notifying their claim to the Claims Officer for the purpose of determining the amount legally and justly payable to them in respect of these mortgages. In view of their lodging this claim, they did not prosecute Execution Case No 11 of 1953, which was eventually dismissed for default on 27-9-1955. But it seems that later they changed their mind and took no steps in the Claim case under Section 14 of the Bihar Act, and, in consequence, it was dismissed for default on 5-12-1956. During all this time, First Appeal No. 87 of 1952 remained pending, and ultimately by an order of this Court dated 12-5-1959, it was dropped. Thereafter, the decree-holders respondents levied a second execution on 29-7-1959 for recovery of the mortgage debt by sale, not of the milkiat interest which, having vested in the State, was no longer available, but of the bakasht land comprised in the said milkiat.

(3.) One of the judgment-debtors, Sidheshwai Prasad Singh, the appellant before us, filed an application under Sections 47 and 151 of the Code of Civil Procedure objecting to the execution of the decree, on the ground, first, that the execution was barred by limitation under Article 182 (21 of the Limitation Act and also under Section 4 (d) of the Bihar Act; and, second, that having proceeded under Section 14 of the Bihar Act, they were precluded from executing the mortgage decree in Civil Court. The other objections raised by the appellant are not material for the present purpose.