OMPRAKASH NARAIN SINGH Vs. JAGARNATH PRASAD

JUDGEMENT

(1.) These are decree-holder's appeals and arise out of objections made in two execution proceedings under, Section 47 of the Code of Civil Procedure that the applications for execution are barred by limitation. The parties being the same in both the appeals and the question of law raised being common, I will deal with these appeals in a common judgment, separating them, however, as convenient. The main question involved in these appeals is whether the applications for execution presented by the decree-holder appellant are barred under section 48 of the Code as being more than twelve years from the date of final mortgage decrees for sale. The point is not altogether an easy one and there have been differences of opinion in the, different High Courts but, I think, the answer is clear. Shorn of unnecessary details, the facts not in controversy are as follows.

(2.) The final mortgage decree in Miscellaneous Appeal 17 of 1955 arising out of Execution Case 81 of 1954 of the Subordinate Judge's Court, Gaya, was passed on 28th July, 1941. This was the last application for execution and was presented on 23rd September, 1954. Previously, certain proceedings in execution had been taken which, it is not necessary to relate. The present application was obviously more than twelve years from the date of the decree, and ordinarily the application would be barred under Section 48 of the Code. In fact, this was the objection taken by the judgment-debtors in their application under Section 47. The decree-holder appellant, however, has sought to save limitation by reason of an order dated 25th September, 1945, made by this High Court in civil Revision 150 of 1945. It appears that in a previous application for execution by sale of the mortgaged properties the judgment-debtors applied under Section 11 of the Bihar Money Lenders Act for fixation of instalments for satisfaction of the decree. By his order dated 9th January, 1945, the learned Subordinate Judge refused to fix instalments. The judgment-debtors-moved this High Court in revision. On 25th September, 1945, this Court passed the following order:

(3.) In the other Miscellaneous Appeal, namely, Miscellaneous Appeal 18 of 1955, the final mortgage decree for sale was made on 24th August, 1941. The last application for execution for satisfaction of the decree was made on 29th September 1954. As in the previous case, several proceedings in execution of the decree were taken from time to time which it is not relevant to mention here. If this application also is governed by twelve years rule of limitation, as provided in Section 48 of the Code, it is prima facie barred by time. As in the previous case, the decree-holder based his case on a subsequent compromise between him and the judgment-debtors for payment of the decree by instalments, and his case has been that this compromise provided a fresh starting point of limitation. It appears that in a previous application, for execution the judgment-debtors preferred an application under the Bihar Money Lenders Act for fixation of value of the property sought to be sold, and for instalment for payment of the decretal amount. This application was rejected by the learned Subordinate Judge, and they filed a revision application in the High Court, being Civil Revision 14 of 1948. Ultimately, the decree-holder and the judgment-debtors reached an agreement, and they filed a compromise petition in this High Court. On 12th September, 1951, the High Court accepted, the compromise petition and passed an order to the effect that the judgment-debtors should pay Rs. 25,000/- on 11th December, 1951, and Rs. 15,000 on 11th January, 1952. The balance of the decretal amount was remitted. The last application for execution referred to above is within twelve years from the date of the order of the High Court, namely, 12th September, 1951.