KHALIL-UR-RAFTMAN KHAN Vs. COLLECTOR OF ETAH

JUDGEMENT

(1.) This is an appeal from an order and judgment of the High Court of Judicature at Allahabad, dated 24th June 1930, confirming the order of the Subordinate Judge of Etah, dated 22 April, 1929, in the matter of the execution of a final decree for sale dated 29 July 1922 in a mortgage suit. The appellant is the successor of Abdul Jalil Khan, a Zamindar of Aligarh, who died on 4 October 1923. The material facts are as follows: Abdul Jalil Khan in 1909 or 1910 borrowed money from various people, and several decrees were made against him. The decrees were simple money decrees, and the property, which was attached in execution of the decrees, being ancestral property, the execution proceedings were transferred to the Collector in accordance with the provisions of S.68, Civil PC On 29 August 1911, the Collector, as he was entitled to do, granted a lease to Habib-ur-Rahman Khan of the property belonging to the judgment-debtor, Abdul Jalil Khan, for a term of seventeen years.

(2.) During the pendency of the said lease, which expired on 1 July 1928, Abdul Jalil Khan on 25th September 1914 executed a mortgage of the said property for Rs. 15,000 in favour of Rao Maharaj Singh. In this appeal Rao Maharaj Singh is represented by the respondent, the Collector of Etah, who is in charge of his estate. On 25 October 1920 the Collector of Etah filed a suit, based on the above-mentioned mortgage, against Abdul Jalil Khan, and obtained a preliminary decree on 9 March 1921, which was made final on 29 July 1922. Both the decrees were made ex parte after due notice had been served upon Abdul Jalil Khan. In the Courts in India it was argued on behalf of the appellant that the mortgage was illegal, that the decree obtained on the basis thereof was not enforceable at law, that the decree was obtained in contravention of the provisions of para.11 (1), Sch.3, Civil P.C., and that it was incapable of execution.

(3.) Though these points were taken in the appellant's case, they were not relied on before the Board by the learned counsel for the appellant, and the only arguments presented to the Board were in relation to the other point, which was based upon the Limitation Act. The appellant alleged that the application for execution, in respect of which the above-mentioned order of the Subordinate Judge, dated 22 April, 1929, was made, was barred by the law of limitation inasmuch as certain previous applications dated 2 June, 1925, and 8 July 1926, were not steps in aid of execution so as to save limitation. It was further argued on behalf of the appellant that the said previous applications were not bona fide and were not taken with the intention of executing the said decree, but were merely for the purpose of gaining time, and that consequently the application in question was barred by the law of limitation.