BAJYA HARI Vs. TARACHAND HUKUMCHAND

JUDGEMENT

(1.) THIS is a miscellaneous (second) appeal against the order dated 6 11-1944 passed by Mr. K. Radhakrishnan, I.C.S., District Judge, Cbhindwara, in civil Appeal No. 12A of 1944 arising out of execution proceedings in civil Suit No. 81A of 1937 decided by the Subordinate Judge, 2nd Class, Chhindwara.

(2.) THE suit was originally brought on a mortgage, but the matter was referred to an arbitrator and on his award a compromise decree was passed on 10-11-1937. By this decree the judgment-debtors were allowed to pay by annual instalments commencing from 1-6-1938. The agreement was that on default of three instalments the whole of the amount would become due. Admittedly three instalments were defaulted, and thereafter the decree-holder (respondent 1 in this matter) applied to the Court for a final decree on 7-9-1942. This application was rejected on 31-8-1943 because the compromise decree in effect operated as a final decree between the parties and after the rejection of this application the present application for execution was filed on 19-10-1943. This was patently beyond the period of limitation and unless the application dated 7-9-1942 can be regarded as a step-in-aid of execution of the decree the application for execution (unless otherwise saved) must be rejected.

(3.) FOR the appellant reliance is placed on Maruti v. Nanjappa Chetty A.I.R. 1942 Nag. 63, Jodh Singh v. Bhagwan Das Nanak Chand A.I.R. 1938 Lah. 117 and Calcutta Corporation v. Monjoor Ahmed and Mr. V.K. Sanghi who appeared for the minor respondent 5 has further relied upon Gulabsingh v. Nathu . The argument on behalf of the appellant is that the application for a final decree was a totally infructuous proceeding, and, therefore, it did not serve to save limitation.