MANGILAL Vs. RAGHUBAR DAYAL

JUDGEMENT

(1.) This is the judgment-debtor's appeal against the appellate judgment and order of the learned Additional District Judge, Alwar, and arises out of execution proceedings. The facts are as follows: A decree was obtained by Data Rani against Chetram for the recovery of Rs. 2,130/6/6 on the 13th December 1923 from the Civil Court at Alwar, Rs. 130/6/6 were paid at the time of the decree and five annual instalments of Rs. 400/- were fixed. We are concerned, with the last two of them, i.e., the 4th and the 5th. The fourth instalment was payable on Magsir Section 2, St. 1984, corresponding to 26th November 1927, and the fifth and the last instalment was payable on the 4th December 1928. After the decree both the original decree-holder and judgment-debtor died. Raghubar Dayal, a grandson of the original decree-holder, applied in execution on the 21st September 1928 for the recovery of the fourth instalment which had become due and was not paid. The execution was filed against Mangilal, son of Chetram, original judgment-debtor deceased. It was prayed that the amount be recovered by rateable distribution from the sale-proceeds of half the share in a house, a Nohara and two shops, which had been attached in the case, 'NANAGRAM v. MANGILAL', of the Court of the Nazim Mada-war. Another application was made for the recovery of the 5th instalment on the 3rd January 1929, and in that application also a prayer for rateable distribution out of the sale proceeds of Nanagram's case was made. For certain reasons, which are not necessary to mention, the amount of neither of these instalments could be recovered upto the 28th October 1940, and consequently on the said date Raghubar Dayal (who would hereinafter be referred to as decree-holder) made an application that the following property be attached in execution of the decree and the judgment-debtor be also arrested. It was also mentioned that he did not desire the share in the sale proceeds of Nanagram's execution.

(2.) Mangilal (who will hereinafter be referred to as judgment-debtor) objected that no proceedings could be taken upon the application as it was made more than 12 years from the date the fourth instalment became payable and also more than 3 years from the date of the final order on the application for execution of the 4th and the 5th instalments.

(3.) It may be mentioned that when the application dated the 28th October 1940 was made, the office made a report that the fourth instalment had become time-barred and issued process only in respect of the fifth instalment.