PITAMBAR JANA Vs. DAMODAR GACHAIT

JUDGEMENT

(1.) This appeal raises a question relating to limitation and the law on the point may safely be said to be still in a nebulous state. It is necessary to state some facts on which the consideration of the question turns.

(2.) The decree-holder (the appellant before us) obtained a preliminary decree upon a mortgage in his favour on the 29 May 1918. The judgment-debtor defendant appealed and his appeal was finally dismissed by this Court on the 18 May 1922. During the pendency of the appeal in this Court the plaintiff decree holder applied for and obtained the final decree on the 20 August 1920. As the decision of the High Court in the appeal against the preliminary decree by the defendant was pronounced subsequent to the final decree the plaintiff made an application for a fresh final decree, which application was dismissed on 25 August 1923 on the ground that the final decree had already been passed. On the same day, viz., the 25th August 1923, the plaintiff decree-holder presented an application for execution of the final decree and thereafter appealed against the order refusing to draw up a fresh final decree. That appeal was finally dismissed by this Court on the 23 August 1924. The application for execution filed by the decree-holder on the 25 August 1923 was returned to him on the ground that there were omissions in the application, first, with regard to the amount of interest to which the decree-holder was entitled to in column 7. and, secondly, with regard to the amount of costs which the decree-holder was entitled to in column 8 in the form used for application for execution of decrees, being Form No. 6, Appendix E, Civil P.C. The order recorded on the back of the petition was: Returned to be re-filed within 10 days after the necessary correction.

(3.) It appears that the application returned to the decree-holder was not re-filed after the necessary corrections within the ten days allowed by the above order. On the 28 June 1924 a fresh application was made giving all the necessary particulars and the application which was presented by the decree-holder on the 25 August 1923 was also filed along with it. On the application of the 25 August 1923 which was re-filed, the following order was recorded: The previous application for execution is not necessary as a fresh one has been filed. Return.