KHALILUR RAHMAN KHAN Vs. COLLECTOR OF ETAH

JUDGEMENT

(1.) This is a judgment-debtor's appeal under the following circumstances: One Abdul Jalil Khan, a zamindar of Aligarh, in the year 1909 or 1910, borrowed money from various people and several decrees for money were passed against him. The decrees were simple money decrees, and under the provisions of Schedule 3, Civil P. C, the property which was attached in execution of the decree being ancestral property, the execution proceedings were transferred to the Collector. Under the provisions of the law, the Collector on 29 August 1911, gave a lease to one Habiburrahman Khan of the properties of Abdul Jalil Khan for a period of seventeen years.

(2.) On 25 September 1914, while the property was in the possession of Habib urrahman Khan under the aforesaid lease, Abdul Jalil Khan executed a simple mortgage in favour of Rao Maharaj Singh (now represented by the Collector of Etah in charge of his estate) for a sum of Rs. 15,000. A suit for sale on foot of this mortgage was filed in the Court of the Subordinate Judge on 25 October 1920. This suit was decreed on 9 March 1921, i. e., a preliminary decree for sale was passed by the Court on that date and was made final on 29 July 1922. All the proceedings, viz., the preliminary decree and the final decree were passed ex parte after due notice having been served on Abdul Jalil Khan.

(3.) On 4 October 1923, Abdul Jalil Khan died and was succeeded by the appellant Maulvi Mohammad Khalilur Rahman Khan. On 2 June, 1925 an application for execution was filed by the decree-holder and it was sought by that application to bring the legal representatives of Abdul Jalil Khan on the record. On 14 July 1925 the pleader for the decree-holder stated that the decree-holder wanted first to bring the legal representatives of the judgement-debtor on to the record and then to proceed with the execution. Notices therefore were sent to the pro posed legal representatives. The notices were returned by the serving officer as unserved, but no steps having been taken to re-serve the judgment-debtor's heirs the application was struck off. A second application was filed on 8 July 1926 and notice of this application was duly served on 10 September 1926 on the appellant, but as steps were not taken for execution of the decree the application was struck off on 16 September 1926. On 1 July 1928 the lease of 29 August 1911, in favour of Habibur Rahman Khan, came to an end. The application for execution out of which the present appeal has arisen is dated 30th August 1928, and was presented to the Court on 8 September 1928. Objections were taken by the appellant Khalilur Rahman Khan and two points were raised by him. The first point was that the decree which was under execution was void and incapable of execution and the second point was that the application for execution was barred by time having been filed more than three years from the date of the decree, the two intervening applications not being applications according to law to take steps-in-aid of execution.