BENI MADHAB MAHTO Vs. GANESH SINGH SARDAR

JUDGEMENT

(1.) These are appeals by a decree-holder whose application to execute a mortgage decree has been refused on an objection by the judgment-debtor (mortgagor's successor) on two grounds. One is that the application to execute the decree is barred by time, more than twelve years having elapsed since the passing of the decree. The other objection was that the whole claim was barred by the Encumbered Estates Act (6 of 1876). The debt which is the foundation of the claim of the decree-holder was a debt incurred by Kartick Singh Sardar, proprietor of the Mudali estate, and secured by a mortgage executed in the year 1908. The mortgagee brought a suit on this mortgage on 9 April 1915, impleading as defendant first party the mortgagor and as defendants second party persons who have been referred to as the Trigunaits. These were purchasers in 1914 from two pleaders who had bought the property in 1912 in an execution sale on foot of a mortgage decree on a mortgage which admittedly had priority over the mortgage of the plaintiff. The plaintiff, however, had not been impleaded in the earlier mortgage suit and was thus able to obtain, on 11 July 1916, a preliminary decree for sale subject to the lien of defendants second party over the property for the prior encumbrance consisting of the mortgage debt for which the property had been sold up in 1912. The defendant first party allowed the plaintiff's suit to go uncontested so far as he was concerned, but the Trigunaits defended the suit and appealed to the District Judge who on 12 February 1917 affirmed the decision of the first Court.

(2.) The Trigunaits presented a second appeal to the High Court, making the plaintiff a first party respondent and the mortgagor second party respondent. While this appeal was pending, the estate of Kartick Singh Sardar, the mortgagor, was taken under management under the Encumbered Estates Act on 19 October 1917. The effect of this would naturally be that the Trigunaits appeal was not maintainable against the proprietor of the encumbered estate except through the manager., The manager's name was substituted for that of the mortgagor as respondent on 19 February 1919, and the appeal was dismissed the same day. The plaintiff on the dismissal of the second appeal against the preliminary decree moved the Court of first instance for preparing final decree which was done on 18 December 1920. Thereafter the question arose whether the decree could be executed against the mortgaged property or not. An execution was taken (No. 160 of 1921), and the manager of the Encumbered Estates objected that it should not be allowed to proceed. But the Court overruled the objection, holding that the village Kinutanr having been sold by auction in 1912 had never vested in the manager, and therefore there was no bar to the execution proceeding. The execution was infructuous as no bidder came forward to purchase the property. This was not surprising as the interest of the judgment-debtor in the property had already been sold. The decree-holder took out executions in 1922, in 1925 and in 1926. All these were infructuous because no bidder was forthcoming or because the decree-holder declined to proceed with the case up to the stage of sale. The last execution taken during the period of management was numbered 221 of 1928. In this the prayer was to put the property to sale and the manager objected pleading the Act. The objection was allowed on 1 December 1928, and the execution dismissed.

(3.) The present application was presented on 6 June 1934. The application is more than fourteen years from the date of the decree, and it is more than five years from the date of disposal of the last previous application. -The application, therefore, is prima facie barred by Section 48, Civil P.C., as well as by Art. 182, Limitation Act. It was also held in 1928 by the Subordinate Judge that execution was barred by the Encumbered Estates Act; and that decision whether correct or not has become final and is binding on the parties. The contention of the decree- holder is that the release of the estate from management on 18 July 1931 removed the bar of the Act, and revived the proceedings which terminated in 1928 so that the present application to bring the property to sale may be considered to be in continuation of the earlier proceeding. Mr. Mazumdar argues that the effect of the release of the estate from management in 1931 was to revive his client's execution proceeding of 1928. The argument involves serious difficulties. The effect of an order under the Encumbered Estates Act Section 2 is considered in Kameshwar Prasad V/s. Bhikhan Narain Singh (1893) 20 Cal 609 where it is pointed out that all pending proceedings in respect of antecedent debts of the holder are barred by Section 3 and that any new processes, execution and attachments for such debts are null and void in their inception: Section 7 further expressly declares that every debt or liability other than debts etc., due to Government or rent due to the superior landlord, which is not duly notified to the manager shall be barred.