TARAN ROY BAIN Vs. SHYAM MONDAL

JUDGEMENT

(1.) This appeal is on behalf of the decree-holders and is directed against an order made by the Subordinate Judge, Khulna, dated 30 November 1935, dismissing the appellants application for execution of a decree on the ground of limitation. The decree was an instalment mortgage decree passed on the basis of a compromise on 30 July 1929. Under the compr6mise the total amount declared to be due to the appellants was Rs. 3800. Out of this a sum of Rs. 500 had to be paid by the judgment-debtors within 14 April 1930 and the balance was payable in twenty-two annual instalments of Rs. 150 each. There was a provision in the compromise decree that in default of payment of any one of the instalments the entire sum would be recoverable at once. The present application for execution of the decree was presented on 26 March 1935. It was the case of the decree-holders that a sum of Rs. 500 was paid by the judgment-debtors in accordance with the com-promise decree on 11 April 1930 and the first instalment of Rs. 150 was also paid on 11 April 1931. There was default in the payment of the second instalment which fell due on 14 April 1932 and within three years from that date the application for execution was filed. The learned Subordinate Judge did not disbelieve the first payment but held on evidence that there was no satisfactory evidence to prove that the sum of Rs. 150 was paid on 11 April 1931. On this finding the application for execution was held to be time-barred. It is against this order that the present appeal has been filed.

(2.) On hearing the learned advocates on both sides it seems to us that the view taken by the trial Court cannot be supported. Exs. A1 and A are the two petitions filed in Court on behalf of the decree-holders certifying payments of Rs. 500 and Rs. 150 respectively. They were filed on the dates when the payments were said to have been made and the pleader who filed it was the same pleader who appeared for the decree-holders in the original suit. This pleader has been examined in this case and he swears to having received the two payments on the two specified dates. We do not see any reason why this witness should be disbelieved. That the two applications for certifying payments were filed in Court on 11 April 1930 and 11th April 1931 respectively cannot be disputed and it is absolutely unbelievable that decree-holder could make untrue statements against his own interest at a time when no question of limitation could possibly arise. The learned Subordinate Judge laid stress on the fact that the pleader admitted in his evidence that none of the judgment-debtors came to him when the application was presented in Court. But that does not show, as the learned Subordinate Judge thinks, that he received payment from outsiders. The names of the judgment-debtors who paid the money were mentioned in the petition and it was not necessary that they should be present at the time when the petition was actually filed in Court. We hold therefore that the judgment-debtors really paid Rs. 150 on 11 April 1931, as alleged by the decree-holders and that the application for execution was not time-barred.

(3.) The learned advocate who appears for the respondents has contended that we cannot reverse the order of the learned Subordinate Judge in the present case inasmuch as the appeal has already been dismissed for non-prosecution against three of the substituted respondents who were the heirs of some of the judgment-debtors. It appears from the order sheet that as against respondent 1 (5), 10 (c) and 10 (d) the appeal was dismissed for non- payment of process fees and the Deputy Registrar's costs. So far as those respondents are concerned, the order of the trial Court which is in their favour must stand. The whole question now is whether we can reverse the order as against the other respondents who have been made parties to this appeal. The point is not altogether free from doubt. If some of the persons interested in the equity of redemption had been left out in the original mortgage suit or if they had been made parties after the period of limitation had expired, it is now settled by a series of decisions of this Court that the plaintiff is entitled in such cases to a decree for proportionate share of the mortgage money as against the defendants who are actually on the record or against whom the suit is not barred by limitation and the fact that all the mortgagors were not parties before the Court would not justify the dismissal of the whole suit : vide Har Chandra V/s. Mahumed Husein ( 21) 8 A.I.R. 1921 Cal. 554; Kherodamoyi Dassi V/s. Habib Shaha and vide Imam Ali V/s. Baij Nath ( 06) 33 Cal. 613. It is argued by the learned advocate for the respondents that although it was possible to make a decree for proportionate amount against some of the mortgagors in the suit itself, it could not be done now by the executing Court which is bound to execute the decree as it stands. It is true that the executing Court cannot go behind the decree, but the executing Court can certainly decide that the decree is inexecutable on the ground of limitation against some of the judgment-debtors although it is executable against the rest. Thus, there may be acknowledgment by some of the judgment- debtors which would keep alive the decree against the acknowledging debtors and not against others. In such circum-stances it cannot be said that the executing Court is reopening the decree although the effect of the decision, in substance, is to split up the decree and make it divisible. We do not agree with the learned advocate for the appellants that what the Court should do in such cases is to allow the decree-holder to execute the entire decree by sale of the interest of those judgment-debtors against whom the application was not time-barred. It would be manifestly contrary to all principles of equity that the entire burden of mortgage should be thrown upon some of the mortgagors when by his own laches or negligence the plaintiff lost his remedy against the rest: vide Imam Ali V/s. Baij Nath ( 06) 33 Cal. 613 and Budhmal Kevalchand V/s. Rama Yesu ( 20) 7 A.I.R. 1920 Bom. 306