MAHADEO BHIMASHANKAR MADHAVE Vs. FATUMIYA HUSSEINBHAI

JUDGEMENT

(1.) This second appeal raises a question of law which is whether the appellants darkhast is barred by limitation, and the facts necessary to understand the question are these.

(2.) In a suit to enforce a mortgage one Pandurang Bhikaji Shete obtained a preliminary mortgage decree on June 27, 1938. From that decree the defendant preferred an appeal and the appellate Court made on November 16, 1935, an order declaring the appeal to have abated since the judgment-debtor's heirs had not been brought upon the record, he having died after the filing of the appeal. Prior to that, the preliminary decree was made final on March 7, 1935. On March 30, 1935, the decree-holder applied by darkhast No. 618 of 1935 to execute the final decree, and on September 14, 1985, that darkhast was disposed of. In 1936 the decree-holder's sons, acting through their mother as guardian, assigned the decree to one Balvant, who is the uncle of appellants Nos. 1 and 2 and the husband of appellant No. 3. Balvant himself died on June 25, 1938, and the three appellants filed the present darkhast No. 15 of 1938 on November 16,1938, claiming execution of the decree. The judgment-debtor's heirs raised a plea that the darkhast was barred by limitation.

(3.) The executing Court held that inasmuch as the present darkhast was not filed within three years from the disposal of the previous darkhast, the same had become barred by reason of the limitation period having run out. Consequently, the darkhast was dismissed with costs. The assignees preferred in the District Court, Poona, an appeal against the order of the executing Court, and the learned District Judge, agreeing with the view of the executing Court, dismissed the appeal and confirmed the lower Court's order. The reasons given were: (1) that the word "Appeal" in art, 182, Clause (2), of the Indian Limitation Act, means appeal from the decree or order sought to be executed, (2) that the preliminary decree from which appeal No. 308 of 1933 was filed by the judgment-debtor was incapable of execution, (3) that there was no appeal from the final decree and hence Art. 182, Clause (2), can have no application, and (4) that as in the present case there has been no appeal from the final decree, which is the decree sought to be executed, time should be computed from the date of the final decree and not from the date on which the appeal from the preliminary decree was declared to have abated. The assignees appeal.