BADRI DAS Vs. PASUPATI BANERJI

JUDGEMENT

(1.) The question for decision is whether an application for execution presented by the respondent was barred by limitation. Balaram Bhagat on 1 October 1913, mortgaged three properties to Pasupati Banerji, respondent 1. Subsequently he sold one of the properties to Richha Ram father of appellant Badri Das. Balaram Bhagat died and his property passed to his grandson Deb Narayan Bhagat, respondent 2. Pasupati sued on his mortgage impleading Deb Narayan Bhagat and Richha Ram as defendants and obtained a preliminary decree on 17 September 1920, which was made final on 2 August, 1921. His first application to execute the decree was presented on 20 March 1925, alleging that a payment of Rs. 100 towards interest had been made by Deb Narayan Bhagat on 9 May 1924, and duly endorsed on the back of the copy of the mortgage decree and that he was entitled to execute his decree against both the judgment debtors within three years of that payment. Notices were issued to the judgment-debtors but further steps were not taken and the execution was dismissed for default on 29 April, 1925.

(2.) A second application was presented on 3 December, 1925, which has led eventually to the present appeal. The execution proceeded to sale of all three properties on 7 March 1926; they were purchased by the decree-holder Pasupati Banerji; the sale was confirmed on 20 April 1926 and delivery of possession was taken on 8 September 1926. Richha Ram on 29 September 1926 presented two objections, one was under Order 21, Rule 90 for setting aside the sale of the property which was in his hands, that was numbered as Misc. Case No. 94 of 1926, the other was under Section 47, Civil P.C. and the contention was that the execution commenced on 20 March, 1925, was beyond time. That objection was numbered as Misc. Case No. 93 of 1926 and has given rise to the present appeal. It was at first dismissed by the Munsif on the ground that Richha Ram not having taken an objection in the former execution case could not raise this point now being barred by the principle of res judicata.

(3.) The District Judge dismissed an appeal from that decision, but on second appeal the case was remanded for disposal according to law after coming to a finding on the facts. It has now been held that the payment of Rs. 100 was in fact made on 9 May, 1924, and the District Judge has held on the authority of Tilak Narayan V/s. Mufizuddin Topadar that the payment was effective to give a fresh start to limitation not only against the successor of the mortgagor who made the payment but also the purchaser of the equity of redemption in lot No. 1 of the property. During the above proceedings Richha Ram the purchaser of the equity of redemption died and is represented now by his son Badri Das the appellant.