MINA KONWARI Vs. JUGGAT SETANI

JUDGEMENT

(1.) THE question in this appeal is whether the execution of a decree obtained in the Court of the Principal Sudder Amin of Moorshedabad, by Dhunput Singh against Gopal Chand, is barred by the law of limitation. The appellant is the holder of the decree by assignment from Dhunput Singh. The respondent is the mother of Gopal Chand, and on the death of his minor son Gopi Chand succeeded as the heir of her grandson to the possession of the property which has been attached in execution. The decree was obtained on a mortgage bond, dated the 25th Cheyt 1273 (6th April 1867), for Rs. 9,995, which sum was to be repaid with interest, at the rate of 2 per cent, per mensem, in the month of Jeyt 1274. The bond contained an agreement that it should be specially registered under the provisions of Section 53 of Act XX of 1866. It was presented for registration on the 7th of June 1867, and was registered and the agreement recorded on the 19th, the time fixed for payment having expired on the 13th of the same month.

(2.) ACT XX of 1866 provides (Section 52) that- Whenever the obligor and obligee of an obligation shall agree that, in the event of the obligation not being duly satisfied, the amount secured thereby may be recovered in a summary way, and shall at the time of registering the said obligation apply to the registering officer to record the said agreement, the registering officer, after making such inquiries as he may think proper, shall record such agreement at the foot of the endorsement and certificate required by Sections 66 and 68 of the Act, and such record shall be signed by him and by the obligor, and shall be copied into the register book, and shall be prima facie evidence of the agreement. Within one year (Section 53) from the date on which the amount becomes payable, or where the amount is payable by installments within one year from the date on which any installment becomes payable, the obligee of any such obligation registered with such agreement as aforesaid, whether under the said Act No. XVI of 1864, or under this Act, may present a petition to any Court which would have had jurisdiction to try a regular suit on such obligation for the amount secured thereby, or for the instalment sought to be recovered. On production in Court of the obligation and of the said record signed as aforesaid, the petitioner shall be entitled to a decree for any sum not exceeding the sum mentioned in the petition, together with interest at the rate specified (if any) to the date of the decree, and a sum for costs to be fixed by the Court. Such decree may be enforced forthwith under the provisions for the enforcement of decrees contained in the Code of Civil Procedure.

(3.) GOPAL Chand died some time before May 1870, but at what precise time does not appear in the proceedings. He left a minor son, Gopl Chand, and on the 10th of May 1870, the first application was made for execution of the decree. This was made by Dhunput Singh to the Court of Moorshedabad against himself, described as guardian and surburakar, on behalf of Set Gopi Chand, minor, son and heir of Set Gopal Ghand. It does not appear how he came to be guardian, except that in a petition of the respondent to the Court of Nuddea, which will be afterwards referred to, it is said that he was, according to the arrangement made by Gopal Chand, appointed guardian of Gopi Chand. On the 11th of May it was ordered that the petition be registered, and the decree-holder do deposit the cost of service of notice on the judgment-debtor within seven days. This was merely a formal order, as Dhunput Singh was himself the person on whom the notice would be served.