RADHA KISHAN Vs. UMRAI SINGH

JUDGEMENT

(1.) This is an execution second appeal by a decree-holder against an appellate decree of the District Judge of Shahjahanpur which affirmed the decision of the execution Court of first instance dismissing an application for execution as time barred. The facts giving rise to the appeal are not in dispute and are as follows: On 16 August 1919, two persons named Ram Singh and Sheoraj Singh, hereinafter referred to as mortgagors, executed a simple mortgage in favour of Radha Kishan decree-holder appellant. After the execution of the mortgage, the mortgagors sold either the whole or a part of the mortgaged property to Umrai Singh judgment-debtor respondent. The sale in favour of Umrai Singh was subject to the mortgage of 1919. Thereafter, Radha Kishan appellant brought a suit for sale on the mortgage in the year 1931 and he impleaded the mortgagors and Umrai Singh as defendants to that suit. A preliminary decree for sale was passed in favour of Radha Kishan against all the defendants in November 1931, and a final decree for sale was passed in his favour on 1 December 1934. Within three years of the date of the final decree, viz., on 29 November 1937, Radha Kishan put the decree in execution but the execution was struck off on 4 December 1937. Within a few weeks of the last mentioned date, viz., on 1 January 1938, the United Provinces Temporary Postponement of Execution of Decrees Act, 10 of 1937, came into force and remained in force till 31 December 1940, and, admittedly, during this period no application for execution of the decree was filed by Radha Kishan. The application for execution that has culminated in the present appeal was filed by Radha Kishan on 2 April, 1941, and the prayer contained in the application was for sale of the property transferred to Umrai Singh. The mortgagors were apparently not impleaded as parties to this application for execution which was directed only against Umrai Singh. Even though this application was filed more than three years after the date on which the previous application for execution was struck off, Radha Kishan maintained that the application was within time. He contended that in the computation of the period of limitation, he was, in view of the provisions of Section 5 of Act 10 of 1937, entitled to the exclusion of the period during which that Act remained in force. The relevant portion of Section 8 is as follows: In computing the period of limitation prescribed by the Indian Limitation Act, 1908, or any other law for the time being in force, for...(b) the execution of such decree as is referred to in Section 3, and not covered by Section 6, the period during which this Act shall remain in force, shall be excluded.

(2.) Sub-section (i) of Section 3, enacts that: All proceedings in execution of any decree for money or for foreclosure or sale in enforcement of a mortgage passed by a civil Court on the basis of a liability incurred before the passing of this Act, in which the judgment-debtor or any one of the judgment-debtors, is at the date of the passing of this Act, an agriculturist shall be stayed during the period this Act shall remain in force, if such judgment-debtor does not pay more than Rs. 250 as land revenue or rent, or more than Rs. 30 as local rate for revenue free land or total rate payable by him or any two of them does not exceed Rs. 250.

(3.) It was common ground that all the. three judgment-debtors, viz., the mortgagors and Umrai Singh, were agriculturists of the description referred to in Sub-section (1) of Section 3, and as such, the decree under execution was "such decree as is referred to in Section 3" within the meaning of that phrase as used in Section 5 of the Act. Umrai Singh, the judgment-debtor, however, contended that the decree under execution was "covered by Section 6 and accordingly Section 5 of the Act had no application to the case." Section 6 runs as follows: Nothing herein contained shall (a) preclude any decree-holder from accepting payment under, or any adjustment of his decree voluntarily made by the judgment debtor, or (b) apply to decrees for money arising out of claims relating to trusts or for maintenance or for profits in favour of a co-tenant or co-owner, or for mesne profits, or for damages for tort, or for contribution between co-tenants of agricultural land, or (c) apply to a mortgage-decree sought to be executed by sale of the mortgaged property in the hands of a subsequent transferee who has taken the transfer subject to the mortgage on the basis of which such decree has been obtained.