MAHOMED HUSSAIN Vs. ENAYAT HUSSAIN

JUDGEMENT

(1.) THIS is a second appeal arising out of execution proceedings. The decree- holder, Mahmood Hussain, on April 5, 1909, obtained a preliminary decree for sale against five persons. These five persons were Ewaz Hussain, Inayet Hussian, Farzand Hussain, Hadi Hussain and Muhammad Hussian. The mortgage-deed, the basis of his claim, had been executed by Ewaz Hussain alone. The suit originally was instituted against him alone, but apparently as his whereabouts could not be traced and as the other four persons were actually holding possession of the property and moreover were his heirs the decree-holder made them parties to the suit, and his claim was decreed ex parte as against Ewaz Hussain and on contest as against the other four defendants. On December 18th, 1909 final decree for sale was passed. On January 14th, 1910, i.e., within one year of the final decree, the decree-holder applied for execution of his decree and in the necessary column he entered all the names of the judgment-debtors and he asked to have his decree executed as against Ewaz Hussain. For some reason, which we are unable to understand, the Court directed notice to issue to Ewaz Hussain. That was returned by the serving officer with a report to the effect that Ewaz Hussain refused to accept service. Part of the property was put up to auction, sold, and purchased by the decree-holder. Thereupon some of the other judgment-debtors filed objections to the sale and asked to have it set aside. Their application was first rejected, but on appeal the learned District Judge accepted the application and set aside the sale on the ground that the notice of the application for execution had not been given to the appellants before him. On January 10th, 1913, the present application for execution was made and that application has been rejected by both the Courts below on the ground that it is barred by limitation. Both the Courts have held that the application of January 14th, 1910, i.e., the first application for execution as against Ewaz Hussain, was not an application made in accordance with law and, therefore, did not operate to save the bar of limitation and as the present application has been made more than three years from the date of the final decree, it is barred by limitation.

(2.) THE two grounds on which the Courts below have come to this conclusion are, first of all, that the application of January 14th 1910 was not in accordance with law in that it had been made against a man who was missing at the date of the application and, secondly, they have held that it is res judicata between the parties, that the first application for execution was not in accordance with law by reason of the decision of the District Judge mentioned above in that he set aside the sale of the property. THE Courts below have not found that Ewaz Hussain was dead on January 14th, 1910. THEy have come to the conclusion that he has been missing from a large number of years : but there is no evidence on the record to show that he is dead or that he was dead on the date of the former application. Our attention has been called to a decision of this Court in which it has been held that an application for execution made as against a deceased person is not an application in accordance with law. It is argued that an application for execution made against a man whose whereabouts are unknown is equally bad in law. With this argument we find it impossible to agree. Until a judgment-debtor is dead it is impossible to bring upon the record his heirs. THE bare fact that a man s whereabouts are not known is not sufficient to deprive the decree-holder of the fruits of his decree and we know of nothing in law which would make an application for execution as against him an invalid application. With regard to the plea of res judicata an examination of the District Judge s judgment will show that he nowhere held as between the parties that the application of January 14, 1910, was not in accordance with law. THE basis of this judgment setting aside the sale was the fact that no notice was issued to the appellant before him. THE point is clearly not res judicata between the parties. In view also of the first portion of explanation No. II attached to Article 182 of the Limitation Act, the decree having been a joint one against Ewaz Hussain and the other judgment-debtors, the application of January 14th, 1910, was a good application and was made in accordance with law. THE present application is made within three years of that date and is, therefore, not barred by limitation. We allow the appeal, set aside the orders of the Court s below and remand the case through the lower Appellate Court to the first Court with directions to restore the case to its original number and to proceed to dispose of it according to law. THE appellants will have their costs in this Court and in the Courts below.