DEOO TIWARI Vs. RAM BRICHH RAI

JUDGEMENT

(1.) THIS appeal arises out of execution proceedings. The predecessor in title of the decree-holder (respondent here) advanced a sum of money to Ram Brichh Rai, the appellant, and another member of his family, who were adult at the time, on the mortgage of their joint family property. The money not having been repaid, a suit was brought against the two executants of the mortgage bond and the remaining members of the joint family consisting of their sons and grandsons, The court found that a certain portion only of money lent was required for legal necessity and it passed a decree against all the defendants, including the present appellant, for repayment of the mortgage money, passing an ordinary mortgage decree for that amount, stipulating that if the sum was not paid within the stated time the family property or a sufficient portion thereof should be sold to recover it. For the balance of the money lent a simple money decree was passed against Ram Brichh Rai and the other executant only. Admittedly within three years of that decree that portion of the decree which related to the family property was made final, and execution was taken out and the property was sold. Admittedly again, within three years of the date of the application for execution by sale of the family property this application was made to execute the simple money decree against Ram Brichh Rai by arresting him. Ram Brichh Rai objected on the ground that the decree had become time-barred as against him. THIS objection was overruled by both the courts; hence this appeal.

(2.) IT is strenuously argued by Mr. Ishaq Khan that this decree really was two decrees although written on one piece of paper, and it was argued that execution of the mortgage decree could not keep alive the simple money decree against the appellant, and great stress was laid on the case of Dhirendra Nath Sarkar v. Nischintapore Company (1916) 36 Indian Cases 398 reported in Indian Cases and apparently nowhere else. IT seems to us, however, that that case is really quite different. There, the plaintiff brought a suit to recover from the defendant three separate sums of money due on throe separate contracts of tenancy and he obtained a decree formally awarding him separate amounts with regard to the three tenancies. The plaintiff, in executing his decree, first of all applied to recover the specified sum awarded with regard to one particular tenancy. Subsequently he applied, after three years from the original decree, to execute his decree with regard to the money decreed with respect to mother tenancy, and it was held that that application was time-barred, the reason being that in fact there were three separate suits consolidated and tried together and the result expressed on one piece of paper, but that in reality there were three separate decrees, each capable of execution quite independently of the others. Now in this particular Case, as we have pointed out, all the defendant's were included in the mortgage decree. All the defendants were, therefore, bound to pay that amount, and on failure to do so the family property which belonged; to all of them was liable for sale. The remainder of the money was found due from two only of the defendants, who were liable not only for this amount but also for the amount which had been borrowed for legal necessity This circumstance seems to us to distinguish this case altogether from the Calcutta case already quoted, and the other cases, also, of this Court which have been referred to in argument. In all of them the decrees were pissed against separate individuals. In this case the decree was passed against all the defendants with regard to part of the mortgage money and this, too, with regard to the same property. IT seems to us that this was really one decree for the whole of the mortgage money, and this second application having been made within three years of the first application in which these persons were also parties, keeps the decree alive. We, therefore, think that the decision of the courts below must be affirmed, but as we do not agree entirely within the reasons given by the learned District Judge we make no order as to the costs of this appeal.