BAHAL SINGH Vs. MTCHAMELI

JUDGEMENT

(1.) This is a judgment-debtor's appeal from an order passed by the learned District Judge, Meerut, disallowing his objection to an application for execution made by the respondent decree-holder. The only plea on which the application was resisted by the appellant was that it was barred by limitation. The learned District Judge over-ruled the plea. Hence this appeal.

(2.) The respondent obtained a preliminary decree on foot, of a mortgage on 12th September 1923. The appellant preferred an appeal to the Additional Judge, Meerut, who dismissed it on 7 January 1924. A final decree was prepared on 4th November 1924 on the basis of the decree passed by the Court of appeal. The appellant preferred a second appeal to this Court, which was dismissed on 7 July 1926. After the decree passed by the High Court in appeal from the preliminary decree an application was made by the respondent that the final decree previously prepared be amended, as after the preparation thereof the High Court has upheld the preliminary decree and further costs had been incurred by the respondent and allowed to her by the decree of the High Court. The trial Court, allowed it and directed the amendment of the final decree as prayed. The final decree was amended so as to be in conformity with the decree of the High Court as regards costs. It is not suggested that the so-called amendment of the decree proceedings were taken behind the back of the appellant or that he had no opportunity of resisting the application for amendment, We must take it that those proceedings were taken between the parties and the order of the Court, if otherwise valid and binding, is conclusive between the parties. The order allowing the amendment was passed on 14 January 1929.

(3.) The respondent applied on 23 December 1929, for execution of the final decree, computing the period of limitation from the order directing the amendment of the final decree. The judgment-debtor pleaded that the application for execution was barred by limitation, as it had been made more than three years after the date of the final decree as originally prepared, i.e., 4 November 1924. It is conceded that, unless the limitation is taken to run from the order of amendment of the final decree, the application is barred. The learned District Judge, who over- ruled the plea of limitation, held that: After a preliminary decree passed under Order 34, Rule 4, has been confirmed in appeal, the decree-holder again has a right to obtain a final decree in the terms of the preliminary decree on appeal. This is what really happened, though instead of saying that a final decree in the terms of the preliminary decree on appeal be prepared it was said that the final decree already passed be amended by addition of the costs awarded by the appellate Court.