BANSORI LAL SARKAR, RECEIVER TO THE ESTATE OF GOSTABEHARI MAJUMDAR AND BISWANATH MAJUMDAR Vs. RABINDRA NATH BISWAS (MINOR), JUDGMENT- DEBTOR

JUDGEMENT

(1.) This appeal is on behalf of the decree-holder and it is directed against an order made by the Subordinate Judge of Nadia on 18 March 1940 dismissing the appellant's application for execution of a mortgage decree on the ground of limitation. One Gostha Behari Mazumdar, whose representative the appellant is, obtained a mortgage decree against the respondent in T.S. No. 19 of 1932 of the Court of the Subordinate Judge of Nadia on 23 October 1933. The present application for execution was presented on 19 September 1939, and the decree- holder sought to get round the bar of limitation by alleging that a previous application for execution was filed on 13 October 1936 which after several adjournments was struck off on 12 February 1937. The contention of the respondent was that no such application was filed, and even if it was filed it was not in accordance with law which could give an extension of time under Art. 182(5), Limitation Act. The trial Judge held on evidence that there was in fact an application for execution in connexion with the aforesaid mortgage decree which was filed on 13 October 1936, but as there was no evidence to shew that it was made in accordance with law, the present application must be held to be time-barred. It is against this order that the present appeal has been filed.

(2.) The learned advocate for the respondent has not seriously challenged before us the finding of the trial Court that an execution application was in fact filed by the appellant on 13 October 1936. The execution petition itself was destroyed under the rules, and no certified copy of it was in possession of the appellant. Exhibit G-1, which is alleged to be a copy made out of the execution petition, or rather a copy of the same by Rati Kanta Banerjee a pleader's clerk, who deposed for the appellant, has been rightly discarded by the Subordinate Judge. It appears clear however from Ex. J series that an application for execution in Title Suit No. 19 of 1932, was presented in the Court of the Subordinate Judge, Nadia, on 13 October 1936. The year 1933, as given in Ex. J, is obviously a mistake, as Exs. J1 and J2 would show. Exhibit J2 shows that the decree-holder filed a petition for proceeding with the execution case with D register in Title Suit No. 19 of 1932. Exhibits J4 and J5 further show that the decree-holder applied for time on 5 February 1937 and 12 February 1937.

(3.) Now the whole question is whether the application was in accordance with law. The Subordinate Judge is perfectly right in holding that there is no presumption in favour of the regularity of any such petition, and the entire burden is upon the decree-holder to show that the requirements of law were complied with. We think however that the evidence adduced by the appellant is quite sufficient to enable him to discharge the burden. The appellant's case is that as the decree was in respect of an equitable mortgage, the executing Court passed orders directing the decree-holder to file the documents of title deposited by way of security as well as certain extracts from D register relating to the revenue paying properties. The extracts from D register were filed on 10 December 1936 and then adjournment was prayed for filing the documents of title. Altogether four adjournments were given and on 12 February 1937 the case was dismissed, the documents not being filed even at that time. Ordinarily we would have considerable hesitation in relying upon the oral testimony of the plaintiff's own men, on a matter like this, but the oral evidence seems to us to be substantially corroborated by two contemporaneous letters Exs. E and E2 which were written by Rati Kanta the pleader's clerk to the decree-holder, and against the genuineness of which nothing has been suggested on behalf of the respondents.