MOHAMMAD SADIQUE MIAN Vs. MAHABIR SAO

JUDGEMENT

(1.) This is an appeal by the judgment-debtor against an appellate order rejecting his objection under Section 47, Civil P.C. The decree under execution is a final decree for mesne posts passed under the provisions of Order 20, Rule 12(2), Civil P.C. After the preliminary decree had been passed, a Commissioner was appointed by the Court to ascertain the mesne profits. The Commissioner submitted his report which was accepted by the Court on 6 January 1936, and the Court passed the following order on that date: The Commissioner's report is put up. Let final decree be prepared in terms of the Commissioner's report. The plaintiff shall get costs on ex parte scale and Pleader's fee Rs. 2&frac per cent. No decree, shall be prepared unless defioit court-fees are filed.

(2.) The plaintiff apparently remained idle for a long time, and on 10 September 1938, he filed a petition praying for assessment of deficit court-fee and for preparation of the final decree. On that application the Court passed an order on 26 October 1938, directing the plaintiff to pay definite court-fee of Rs. 127-8-0 by 19 November 1938. The plaintiff, however, did not deposit the deficit court- fee until 1 December 1938. Then on 3 December 1938, the following order was passed: "Deficit court-fee stamp filed. Let final decree be drawn up now." The decree was actually drawn up on 30 January 1939, and it was signed on 8th February 1939.

(3.) The application for execution was filed on 17 January 1940. The judgment- debtor took the objection that the execution was barred by limitation as it was filed more than three years after the date of the decree. This objection found favour with the learned Subordinate Judge but on appeal the learned District Judge overruled it and allowed the execution to proceed. The judgment-debtor accordingly has come up in second appeal.