JOTI PRASAD Vs. BARU SINGH

JUDGEMENT

(1.) This is an execution; first appeal and arises under the following circumstances: One Chadda Singh, father of respondent 1 Baru Singh, mortgaged his property to the decree-holder appellant, Joti Prasad, on 8 July 1910. Six years later, on 31 March 1917, a second mortgage was made in respect of a portion of the property mortgaged in 1910, in favour of the respondents Jagannath and Shambhu Nath. Janeshar Das, another respondent to this appeal, purchased most of the property mortgaged, on 28 March 1919 for a sum of Rs. 10,000. Baru Singh, who had since succeeded his father to the property, had to pay off certain debts including a promissory note executed by himself in favour of Joti Prasad. Accordingly, he left most of the consideration money in the hands of Janeshar Das for payment to his creditors including Joti Prasad and Jagannath and Sbambhunath, As no payments were made to Joti Prasad, he brought a suit on foot of the mortgage of 1910 and obtained a final decree on 22 December, 1923. He put the decree into execution and his application was dismissed on 8 May 1924. The second application, namely the present one out of which the appeal has arisen, was made on 20 July 1928, more than three years after the dismissal of his. first application. He was met with the plea that the application was time barred, and we have to see whether this plea is correct.

(2.) Before we can arrive at the correct conclusion, certain additional facts have-to be considered.

(3.) Baru Singh brought a suit against Janeshar Das, the purchaser of the mortgaged property in 1923, being Suit No... 176 of that year for recovery of the consideration money of the sale deed and interest and possibly damages. He obtained a decree for a large sum of money-exceeding Rs. 17,000 on 11th February 1924. It was declared that the amount decreed was to be a charge on the property sold. In the mon May, 1924 Baru Singh certified payment of a sum of Rs. 7,000 odd towards his degree by Janeshar Das, and he also relinquished his rights as exproprietary tenant in the sir and khudkasht lands in favour of Janeshar Das. On 23 April 1927 Baru Singh obtained a final decree for sale against Janeshar Das. Janeshar Das in satisfaction of the decree obtained by Baru Singh against himself resold the property to Baru Singh on 11 February 1928.