ZAHURUL HASAN Vs. BADRI NARAIN

JUDGEMENT

(1.) This is an execution second appeal arising out of an objection made by the appellants to the rights of the decree-holders to have certain property sold in execution of their decree. The objection has been dismissed by both the Courts below; hence the present appeal by the objectors. One Nurul Hasan executed a mortgage deed on 15 October 1914 in favour of Ghasi Ram, Badri Narain and others, the decree-holder-respondents, for a certain sum of money, hypothecating a house. By a deed of even date his mother Muradbee executed a bond hypothecating another house belonging to herself as collateral security for due payment of the money secured by the deed executed by her son. The mortgagees obtained a preliminary decree on 9 November 1917 on foot of the mortgage deed and the security bond. Nurul Hasan and Muradbee were parties to the suit. On 24 June 1918 a final decree was passed against the aforesaid two persons. The decree-holders applied on 9 August 1918 for execution of the decree. In course of the execution proceedings which followed, a compromise was arrived at between the decree-holders on the one side and the judgment-debtors on the other, It was agreed that the decretal amount would be paid by certain instalments and that on failure to pay four of the instalments the whole of the decretal amount would become payable. It was also agreed that the house belonging to Muradbee, which had been hypothecated under the security bond should not be sold till the House hypothecated in the mortgage deed executed by Nurul Hasan was sold and the sale proceeds proved to be insufficient for satisfaction of the decretal amount. On 17 April 1920 Muradbee executed a deed of wakf in respect of certain properties including the house which she had hypothecated under the security bond. Subsequently Muradbee died. By an order dated 18 July 1921 the decree-holders certified payment by the judgment- debtors of a gum of Rs. 600 towards part satisfaction of the decree.

(2.) On 29 February 1924 the decree-holders made an application for execution of their decree praying for sale of both the houses. In column 2 of the application, that is the one in which the names of the parties are to be set forth, she mentioned, inter alia, the names of Nurul Hasan, the son of Mt. Muradbee, and of certain other persons who are the heirs of Muradbee under the Mahomedan law. The names of the objectors who are beneficiaries under the deed of wakf were not mentioned in the array of parties. The application was dismissed for certain reasons which it is not necessary to state. On 12 October 1925 another application which gave similar particulars was filed. The array of the parties was the same as before. In 1926 the objectors instituted a regular suit for a declaration that the house which Muradbee had hypothecated as security was not liable to sale in execution of the decree obtained by the respondents. One of the defences was that the regular suit was barred by the provisions of Section 47, Civil P.C. This plea succeeded and the suit was dismissed on 22 October, 1926. An application was made by the appellants on 15 December 1926 to the Court executing the decree raising the same question as was raised in the regular suit. It was also pleaded that the application dated 12 October 1925 was barred by limitation. The decree-holders controverted these pleas and urged that an application of the kind made by the appellants was not maintainable under Section 47, Civil P.C. This latter objection has been overruled by the Courts below. No attempt has been made to revive it before us. We need not, therefore, take any further notice of it. The only two questions which were seriously considered by the Courts below and which have been argued before us are: 1. Whether the application dated 12 December 1925 is barred by limitation, 2. Whether the house to which the objection relates is not saleable in execution of the decree obtained by the respondents.

(3.) As regards the first question the argument addressed to us is that Section 22, Lim Act, is applicable to execution proceedings, though in terms it refers only to a suit. It is, therefore, argued that the application dated 12 October 1925 should be considered to have been made against the objectors when they were impleaded as parties to it. Now they were not impleaded as parties to that application till at any rate 5 April 1928 when the learned District Judge ruled in deciding the appeal before him that the objectors were necessary parties and should be impleaded as such. It is contended that the application for execution should be considered to have been made against the objectors for the first time on 5 April 1928 which is more than three years from the date of the final decree. Consequently it is said to be barred by limitation. We are unable to accede to this contention. As the question whether an application for execution of a decree is barred by limitation should be determined with reference to the provisions of Art. 182. Lim. Act., Clause (5) of that Art. gives a fresh start to limitation from the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree or order.