BATUK NATH Vs. MUSAMMAT MUNNI DEI

JUDGEMENT

(1.) THIS is an appeal from a decree, dated June 4, 1910, of the High Court of Judicature at Allahabad, which dismissed an appeal by the appellant here from a decree of the Subordinate Judge of Agra, dated September 8, 1908, dismissing an application which had been made on October 2, 1907, to the Court of the Subordinate Judge by Batuk Nath for the execution of a decree of March 29, 1898.

(2.) THE decree of March 29, 1898, had been made by the then Subordinate Judge of Agra in favour of one Sheo Narain in a suit which had been brought by him under the Transfer of Property Act, 1882, for sale of certain immovable property. By that decree it was ordered that if Sheo Narain should fail to pay a prior mortgage debt within five months from March 29, 1898, his suit should stand dismissed with costs. Prom that decree of March 29, 1898, an appeal was brought to the High Court of Judicature at Allahabad. That appeal was dismissed by the High Court by its decree of February 12, 1900, but in dismissing the appeal the High Court extended the time for payment of the prior mortgage debt to August 9, 1900. It has not been alleged or proved that any certified copy of the decree of March 29, 1898, was registered within the meaning of Article 179 of the Second Schedule of the Indian Limitation Act, 1877. From the decree of February 12, 1900, of the High Court an appeal to His Majesty in Council was brought. On December 15, 1904, the appeal to His Majesty in Council stood dismissed for non-prosecution under Rule V. of the Order in Council of June 18, 1853, without further order.

(3.) IN making his decree of September 8, 1908, dismissing the application of October 2, 1907, the Subordinate Judge held that the period of limitation which was applicable to the case ran from the dismissal for want of prosecution of the appeal to His Majesty in Council, that is to say, from December 15, 1904, and consequently that the application for execution had been made within time; he doubtless was under the impression that the appeal had been dismissed by an order of His Majesty in Council made in the appeal. The Subordinate Judge dismissed the application on the ground that, the terms as to the payment of the prior mortgage debt imposed by the decree of March 29, 1898, not having been complied with within the extended time, the suit by the terms of that decree had stood dismissed. The attention of the learned judges in the High Court does not appear to have been drawn to the question of limitation; they dismissed the appeal to their Court on the ground upon which the application had been dismissed by the Subordinate Judge.