CHANDRA BHUKHAN Vs. RAMDUTT MAHTO

JUDGEMENT

(1.) This order will govern Misc. Appeals Nos. 384 and 387 of 1943 and Nos. 101 and 404 of 1944. All these appeals relate to the execution of a decree obtained by Ramdutt Mahton and another, appellants in Misc. Appeals Nos. 404 and 101, against Chandra Bhushan Misra and Dwijendra Prasad Missir who are the appellants, respectively, in Misc. Appeals Nos. 384 and 387. The Missirs gave certain property in usufructuary mortgage to the decree-holders in the year 1929 for Rs. 34.000. On account of some payments which the mortgagees had to make to the landlords of the property in respect of rent and other demands, the mortgagees got a decree against the Missirs on 11-11-37 for Rs. 9000. In 1938 they proceeded to execute the decree being Execution Case No. 67 of 1938, and brought the entire mortgaged property to sale subject to the usufructuary mortgage and purchased it themselves for Rs. 1045 on 10-11.38. The sale certificate was issued on 28-3-39 and delivery of possession was taken through the Courts on 9 7-41. No further steps appear to have been taken by the decree- holders till the year 1942, when they instituted Execution Case No. 85 of 1942, to execute the decree against the Missirs for the balance of the decretal amount still due. Notice under Order 21, E. 22, Civil P.C., was issued and was served on 23- 10-42, and thereupon the two judgment-debtors appeared on 25 11-42 and filed applications challenging the sale on the ground of gross undervaluation and fraudulent suppression of execution processes. They also challenged the validity of the sale on the ground that under the provisions of Order 34, Rule 14, Civil P.C., the dues of the mortgagees on account of their payment to the landlords should have been realised not by a separate decree but by inclusion in the amount secured by the mortgage under the provisions of Section 72, T.P. Act. Limitation was claimed to be saved on the ground that, till receipt of the notice under Order 21, Rule 22 and inspection of the records on 20-11-42, the judgment-debtors had no knowledge of the sale and the proceedings leading up to it. Both these applications have been dismissed by the Subordinate Judge and the present appeals Nos. 384 and 387 have been filed by the judgment-debtors against his orders of dismissal. The judgment-debtors also filed applications challenging the maintainability of the Execution Case No. 85 of 1942, on the ground that it was time-barred.

(2.) The previous Execution Case No. 67 of 1938 was dismissed on 13-3-39. The present execution case wag filed on 4-7.42. Limitation was claimed to be saved by two acknowledgments in writing purporting to be signed by the two judgment- debtors and dated July 1910, acknowledging the payment of certain sums towards the decretal dues. The Subordinate Judge has allowed the applications, holding that the acknowledgments in question are forgeries. Appeals Nos. 404 and 101 have been filed by the decree-holders against these two orders.

(3.) The first thing to notice in Misc. Appeals Nos. 384 and 387 is the considerable delay that has occurred in the filing of these petitions subsequent to the sale of the property, and the Subordinate Judge rightly set himself to consider whether the judgment-debtors had established that they filed their applications within the period of limitation. In doing so, however, it appears to me that he has paid too much attention to the direct evidence on the point, and has not attached sufficient weight to the circumstances. One of these circumstances is the fact that the property in question was already in the possession of the decree-holders themselves. The notices in execution, apart from the notice under Order 21, Rule 22, are notices that are published at the spot. The property lies in villages Mahipur, Chamaulia, Machhargawan, Borwal and Majnaria, while the judgment- debtors are residents of Narainpur. Apart from the fact that Narainpur belongs to the same thana and pargana as some of these villages, there is nothing to suggest that theses villages are near Narainpur and that the judgment-debtors were likely to know about the publication of the processes at the spot. As regards the notice under Order 21, Rule 22, both the judgment-debtors have gone into the witness- box and have denied that this notice was served upon them. As against this evidence, the Subordinate Judge has relied upon the evidence of the civil Court peon to the effect that the notice was duly served. Neither the report of service nor the deposition of the peon indicates that the peon knew the judgment-debtors from before, and the decree-holders have not examined the identifying witness on whose identification the notice is said to have been served. The position, therefore, is that on the side of the judgment-debtors service is denied by the persons on whom the service is said to have been made, while, on the other side, we have merely the statement of the peon that service was effected. As, however, the peon does not profess to have been personally acquainted with the judgment- debtors, there is no legal evidence that service was, in fact, effected upon them. That being so, there is no option but to accept the denial of the judgment-debtors, which is not challenged by any positive evidence to the contrary.