PURNA CHANDRA MANDAL Vs. RADHA NATH DASS

JUDGEMENT

(1.) This is an appeal against an order of the Additional District Judge of Jessore, passed in an execution case.

(2.) He held that the decree-holder was entitled to execute a decree passed in his favour on the 7 September 1894. The decree-holder's application for execution was made on the 15th November 1904, i.e., admittedly out of time. But the decree-holder contended that execution of his decree, which was a mortgage decree, was saved from the bar of limitation by applications under Section 90 of the Transfer of Property Act made on the 3 January 1899, 4 December 1901 and 19 June 1903. It is conceded that, if these applications do not save execution from being barred by limitation, the present application for execution is long out of time.

(3.) The Additional District Judge held that these applications do save execution from being barred, and he has done so on the authority of the ruling in Dina Nath Mitter V/s. Bejoy Krishna Das (1903) 7 C.W.N. 744, in which it has been laid down that it is unnecessary to apply under section. 90 for a supplemental decree when the decree as in this case gives power to proceed against the person of the mortgagor, as well as against the mortgaged property and that the decree-holder made these applications in good faith under the impression that the mortgaged property had been sold free of incumbrances and that these applications were necessary to protect his interests.