NOOR MOHAMMAD Vs. MOHAN LAL ALIAS BECHEY LAL

JUDGEMENT

(1.) This is an appeal by a decree-holder under Clause 10 of the Letters Patent against a judgment of a learned Judge of this Court and arises under the following circumstances. On 5 October 1932, one Lai Mohammad and his two sons, Noor Mohd. and Tabaruk Husain transferred certain zamindari property to two persons named Kanhiya Lai and Lai Singh (hereinafter referred to as vendees) for a sum of Rs. 5000. Half of the sale consideration was paid in cash by the vendees and with respect to the remaining half of the sale consideration, the vendees, on the same date, executed a simple mortgage in favour of Noor Mohammad one of the vendors, hypothecating the property sold. One Mohan Lai brought a suit for pre- emption against the vendees and obtained a decree in the year 1933 and in execution of that decree obtained possession of the property covered by the sale deed of 1932. Thereafter Noor Mohammad put his simple mortgage into suit and eventually obtained a decree for sale in the year 1937 against the vendees and Mohan Lal.

(2.) Noor Mohammad applied for execution of the decree on 16 November 1937. During the pendency of this application for execution the Temporary Postponement of Execution of Decrees Act (10 [X] of 1937) came into force on 1st January 1938 and presumably because of this Act Noor Mohammad did not prosecute his application for exe-cution and the same was dismissed for want of prosecution on 21 February 1938. Act 10 [X] of 1937 remained in force till 3lst December 1940 and after that Act had ceased to be operative Noor Mohammad again filed an application for execution on 25 April 1941. Mohan Lai who was in possession of the mortgaged property, objected to the execution of the decree on the ground that the application for execution was time barred. This contention of Mohan Lai was given effect to by the execution Court and the application for execution was, accordingly, dismissed as time barred. On appeal by Noor Mohammad, the lower appellate Court reversed the decision of the execution Court and held that the application for execution was within time. Mohan Lai filed an execution second appeal in this Court and a learned Judge of this Court agreed with the trial Court in holding that the application for execution was barred by limitation, and accordingly, reversed the decision of the lower appellate Court and restored the decision of the Court of first instance. In our judgment, the decision of the lower appellate Court was perfectly correct and ought to be restored.

(3.) Act 10 [X] of 1937, as stated before, remained in force from 1 January 1938 to 31 December 1940 and if this period be excluded in the computation of the period of limitation, the application for execution, dated 25th,April 1941, was admittedly with-an time. It was, however, maintained by Mohan Lal that in view of the provisions of clause (c) of Section 6 of that Act, that Act had no application to the decree under execution. Clause (c) of Section 6 reads as follows: Nothing herein contained shall...(c) apply to a mortgage decree sought to be executed by sale of the mortgaged property in the hands of a subsequent transferee who has taken the transfer subject to the mortgage on the basis of which such decree has been obtained.