CHAUDHRI GHULAM MOHIUDDIN KHAN Vs. DAMBER SINGH

JUDGEMENT

(1.) THE facts of this case are somewhat complicated but they can be shortly stated. One Sri Kishen Das obtained a decree. THE decree was against one Damber Singh, Karan Singh and certain other persons. THE decree awarded possession of certain property and costs against all the judgment-debtors jointly. Karan Singh and Dambar Singh alone appealed to the High Court, which dismissed the appeal with costs against Damber Singh and Karan Singh, This happened on the 1st of December 1904. Damber Singh had a decree against Sri Kishen Das and he attached either the first Court s decree, or both the First Court s decree and the decree made by the High Court (it is not quite clear which) in execution of his decree against Sri Kishen Das, From time to time Damber Singh sought execution against all the judgment-debtors other than himself and Karan Singh. From time to time he realized money as the result of these applications for execution and eventually it was held that he had realized the amount awarded by the first Court s decree. No mention appears ever to have been made specifically of the decree of the High Court, and it would almost seem as if it was the first Court s decree, and not the High Court s decree, which was being executed by Damber Singh. So far as the High Court s decree is concerned, the last application for execution previous to the present one was in the year 1907. Sri Kishen Das eventually became insolvent and the present applicants were purchasers at public auction of the assets of Sri Kishen Das including the decree or decrees to which we have referred above. THE present applicant is, therefore, entitled (provided he is within time) to execute the decrees which Sri Kishen Das obtained, and the present application was against Damber Singh for the alleged balance still due upon foot of the first Court s decree and the High Court s decree. It seems to us quite clear that so far as the first Court s decree is concerned the full amount was already realized by Damber Singh before Sri Kishen Das became insolvent. It is argued that the applications which were made from time by Damber Singh, the last of which w(sic) admittedly within three years of t(sic) present application, saved limitation an entitled the present owner of the decree to apply for execution. We do not think that this can be so in the present case, because the money which it is now sought to realise is really the money due on foot of the High Court s decree, and that decree was against Damber Singh and Karan Singh only. No previous applications since the year 1907 were made either against Damber Singh or Karan Singh. This being so, the order of the Court below was correct and must be confirmed. We dismiss the appeal with costs including in this Court fees on the higher scale.