RAM NATH MODI Vs. ANARDEI DEVI

JUDGEMENT

(1.) This appeal by the executing decree-holders is directed against an order of the Special Subordinate Judge of Ranchi holding that they were not competent to proceed with the execution in question and that the execution is barred by limitation. The facts giving rise to this appeal are these. The Central India Spinning, Weaving and Manufacturing Company Ltd. (proforma respondent No. 10) instituted on 21-9-1934 mortgage suit No. 47 of 1934 against Khemraj Jamanadhar and others, whose heirs are the principal respondents 1 to 9. The suit was decreed on compromise sometime in 1936. The terms of the compromise were that the entire mortgage dues were settled at Rs. 7000/- and the mortgagors defendants would execute a sale deed for the three items of the mortgaged properties for this amount. The defendants did not execute the sale deed as agreed and there was an application in the suit itself to have the sale deed executed by the Court according to the compromise. A dispute arose whether plots 1523 and 1425 were also to be included in the sale deed, that is, whether these plots were also the subject-matter of the mortgage. The Court held on 27-6-1936 that those plots were not' included in the mortgage and thereafter the suit was decreed in terms of the compromise, but the decree stated at the same time that these two plots were not included. The plaintiff then preferred an appeal and the appellate Court dismissed the appeal with the observation that the direction of the trial Court excluding plots 1523 and 1425 shall be set aside. Therefore the decree-holder executed the com-promise decree in Execution case No. 65 of 1959 and ultimately the executing. Court executed on 3-1-1940 a sale deed on behalf of the judgment-debtors in respect of all the mortgaged properties including plots 1523 and 1425 and the sale deed was registered. On 22-7-1940, a notice was given by the decree-holder to the judgment-debtors demanding possession. But to no effect. Hence the decree-holder, that is, the Central Spinning company instituted Title suit No. 27 of 1940 for recovery of possession of the said properties as well as for mesne profits. On 20-11-1941 the suit was decreed and a decree for possession was passed except in respect of plots 1523 and 1425 and it was directed that mesne profits would be determined in a future proceeding. This decree was executed in Execution case No. 24 of 1942 in September 1942. Possession was delivered to the decree-holder over items Nos. 2 and 3 of the mortgaged properties, but possession could not be delivered over item No. 1 which consisted of plots 1537 to 1542, as in the writ the Court directed that the bailiff shall not pass over plot No. 1523 for delivering possession over plots 1537 to 1542. Then the decree-holder instituted title suit-No, 39 of 1943 for a declaration that the plaintiff had a right of way over item No. 1 of the property through plot No. 1523. On account of this suit, the execution proceeding was stayed at the instance of the decree-holder who filed a petition to that effect on 4-8-1943. On 15-5-1945. Title suit No. 39 of 1943, was decreed, that is, right of way over plot No. 1523 was declared in favour of the decree-holder. On the same date, the stay order in Execution ease No. 24 of 1942 was vacated and the execution proceeding re-commenced. In the mean time, on 18-8-1943 the Spinning Company (hereinafter referred to as the original decree-holder) executed a sale deed (Ext. D/r) in favour of Surajmull Modi (hereinafter referred to as the executing decree-holder). On 1-5-1945, the sons of the original judgment-debtors instituted title suit No. 41 of 1945 in which they challenged the sale deed executed by the executing Court and prayed for permanent injunction restraining the original decree-holder and the executing decree-holder from taking possession of plots 1537 to 1542. A prayer for temporary injunction by the plaintiff of this title suit was rejected by the trial Court, but allowed by the High Court on appeal on 29-8-1945. The title suit was dismissed on 27-9-1948 and the temporary injunction granted by the High Court was in the eye of law automatically vacated; but the plaintiff of that suit preferred a first appeal to the High Court and this Court stayed the delivery of possession during the pendency of the appeal. This appeal was dismissed on 17-9-1956 and, therefore, the stay order was automatically vacated; but the executing Court passed the formal order vacating the stay and asking the decree-holder to take steps in the execution case on 20-5-1957. After some adjournments, the execution case was dismissed on 3-7-1957 for default of the decree-holder to take steps but on part satisfaction.

(2.) It will be noticed, however, that the execution case remained stayed at the instance of the principal respondents from 29-8-1945 to 17-9-1956, though the executing Court vacated the stay order on 20-5-1957.

(3.) Surajmall Modi, then filed two applications in 1959, one for revival of Execution case No. 24 of 1942 and the other a fresh application for execution. The former application was reject-ed, but the second application was numbered as Execution case No. 89 of 1959. After some time, Surajmull Modi died and his heirs were substituted in May 1960 as executing decree-holders. They are the appellants in this Court, The principal respondents, that is, the heirs of the original judgment-debtors filed an application in this execution case under Section 47 of the Code of Civil Procedure. They contended that, inasmuch as the decree had not been assigned in writing in favour of Suraj Mull Modi or his heirs, it would not be executed by them. They further asserted that, in view of the provisions contained in Section 48 of the Code of Civil Procedure the decree could not be executed inasmuch as more than 12 years had elapsed since the date of the decree. Both these objections prevailed before the Court below and, hence, this appeal by the executing decree-holders.