PANDURANG DEWAJI Vs. RAMESHWAR MOTIRAM

JUDGEMENT

(1.) THIS is a miscellaneous second appeal by the judgment-debtors and the only question involved in this appeal is whether the execution application dated 4-7-1938 for sale of mortgaged property was within time.

(2.) A few relevant facts are these. The decree-holder respondent obtained a final decree for sale of the mortgaged property and applied on 4-7-1938 for execution of that decree. The sons of the judgment-debtor, Pandurang, filed a suit for a declaration that their interest in the mortgaged property was not liable to be sold in execution of the mortgage decree. The suit was dismissed on 14-3-1938 and the appeal preferred against that decree in the lower appellate Court was also dismissed on 28 6-1938. They preferred a second appeal to the High Court and in that appeal the High Court passed an order on 19-10-1938 ordering the sale of the mortgaged property in execution of the decree pending in the trial Court to he stayed. This was intimated to the trial Court and it passed an order 'execution filed'. This was on 15-4-1939. This second appeal No. 565 of 1938 was dismissed by this Court on 29-2-1940. There was then a Letters Patent Appeal and a remand to the second appellate Court and the final decision by the Letters Patent Appeal which is reported in Ganpati v. Rameshwar .

(3.) IT was contended by the judgment-debtors that the execution application dated 4-7-1938 was no longer pending as it was disposed of on 15-4-1939 and the same could not be proceeded with again. It was also argued before me that an application such as the one dated 31-7-1945, assuming it to be a revival application, was governed by Article 181, Limitation Act, and that application not being filed within three years of 29-2-1940 was barred by limitation. The learned Counsel for the appellants relied on Jawahar Singh v. Mahomed Rafiz A.I.R. 1944 Pesh. 17.