BIRENDRA PD SUKUL Vs. SHYAM NANDAN SAHAI

JUDGEMENT

(1.) These two appeals arise out of two miscellaneous cases, namely, Misc. Case No. 42 of 1950 and Misc. Case No. 44 of 1950, which were heard together and were disposed of by one judgment on 7-7-1950. The two appeals are by two sets of judgment-debtors, whose objections under Section 47, Civil P. C. to the execution of a mortgage decree passed against them and several other persons were overruled by the learned Subordinate Judge of Muzaffarpur by his judgment referred to above. Both these appeals have been heard together, and this judgment will govern them both.

(2.) The only question that arises for consideration in these two appeals is one of limitation. The point to be considered is whether the application for execution of the mortgage decree is barred by time. In order to appreciate the question raised before us, it will be necessary to give, in short, the facts of the case out of which the two appeals arise.

(3.) The decree-holders-respondents instituted a mortgage suit, No. 19 of 1935, against the appellants and several other persons on the basis of three mortgage bonds. The suit was decreed after contest by judgment dated 31-3-1937. As in accordance with this judgment substituted securities had to be fixed and the court had to wait for the report of the commissioner fixing such securities, the drawing up of the preliminary decree was postponed for a long time. In the meantime, defendant 1 filed, on 22-2-1940, an application under Section 7, Bihar Money-Lenders Act for the reduction of interest decreed in favour of the plaintiffs which was rejected on 13-8-1940. On the same day an order was passed for drawing up the preliminary decree in accordance with the report of the commissioner with regard to substituted securities. Thereafter, on 21-8-1940, defendant 1 filed another application praying that the decree in the suit be prepared according to the Money-Lenders Act. This application again was dismissed on the ground that the preliminary decree having been passed before the enactment of the Bihar Money-Lenders Act, the provisions of Section 7 of that Act could not be invoked for reducing the amount of interest already decreed. The preliminary decree was actually drawn up on 3-12-1940, and it was sealed and signed oh 9-12-1940. Against this decree a first appeal was preferred in this court. It appears that in connection with the consideration of the court-fee matter it was discovered that there was some mistake in the calculation of the amount of the decree that was prepared by the court, and, therefore, the decree was sent down for correction, which was corrected on 21-1-1942. Thereafter, the deficit court-fee not having been paid, the memorandum of appeal was rejected by this Court on 1-3-1943, and the result was that the preliminary decree that was passed by the court below became final. On 1-9-1943, the decree-holders made an application for making the preliminary decree final. An objection on behalf of the judgment-debtors was raised to this application. During the pendency of this application, an application was made on 2-12-1944, by some of the judgment-debtors under Sections 151 and 152, Civil P.C. and amongst others, a prayer was made for reducing the amount of interest in accordance with the provisions of the Bihar Money-Lenders Act. This application was registered as Misc. Case No. 94 of 1944. Similarly, on 6-1-1945, another set of judgment-debtors filed another application making a similar prayer as was made in Misc. Case No. 94 of 1944. This application was registered as Misc. Case No. 1 of 1945. The objection to the preparation of the final decree as well as these two miscellaneous cases were heard together. The learned Subordinate Judge, by his order, dated 7-6-1945, overruled the objection of the judgment-debtors and dismissed the two miscellaneous cases, He held that the prayer of the defendants with regard to the reduction of interest under Section 7, Bihar Money-Lenders Act had already been rejected by the court and that the provisions of the said Act with regard to the reduction of interest were not applicable to a decree which had already been passed prior to the enactment of the said Act. Accordingly, the learned Subordinate Judge passed an order for drawing up of the final decree, which was actually prepared on 19-7-1945, and sealed and signed on 25-7-1945. Against the order of the learned Subordinate Judge, dated 7-6-1945, three civil revision applications were filed in this Court, namely C. Rule 763 of 1945, Civil Revn. No. 794 of 1945 and Civil Revn. No. 966 of 1945. They were dismissed on 8-4-1947, 10-4-1947 and 26-4-1948, respectively. It was held by this Court in those civil revision cases that the remedy of the judgment-debtors was by way of appeal and the revision applications were not maintainable. It was also observed that since the appeal that was preferred against the preliminary decree failed on account of nonpayment of deficit court-fee, the decree awarding interest became final. The decree-holders, thereafter, filed an application for execution of the decree on 25-11-1948, which was returned to their pleader for removing certain defects. As the application was not refiled after removing the defects, the execution case was struck off on 10-1-1949. The decree-holders, thereafter, filed another application for execution of the decree on 10-3-1949, and it is this application which gives rise to the present appeals.