SHANTI LAL Vs. DAULAT RAM

JUDGEMENT

(1.) The only point for our decision in this second appeal is whether the plaintiff's suit was within limitation. In order to appreciate this point it is necessary to relate the sequence of events leading up to the institution of this suit.

(2.) On 16-8-1924 Daulat Ram defendant mortgaged his occupancy rights in some land in favour of Sukh Dial, father of the present plaintiff. Sukh Dial, the mortgagee, brought a suit for the recovery of the mortgage money by sale of the property and obtained a preliminary decree and then a final decree. He took out execution of this decree on 8-12-1931 but the application was dismissed in default on 16-2-1932.

(3.) The judgment-debtor, that is, the mortgagor was adjudicated insolvent on 15- 4-1932 and during the course of the insolvency proceedings the Official Receiver sold the mortgaged property to the mortgagee in full satisfaction of the decree held by him. The decree was thus satisfied but the satisfaction was not recorded by the executing Court. The landlords now instituted a suit for setting aside the sale in favour of the decree-holder on the ground that as their consent had not been obtained by the Official Receiver the sale was ineffective. The landlords were successful and the sale of the occupancy rights was set aside. The matter was finally disposed of by the Commissioner, Jullundur Division, on 25 4-1940. The plaintiff was thus dispossessed. The plaintiff then on 2-7-1940 made a fresh application for executing his mortgage decree. Objection was taken that this application was barred by time as it had been presented more than three years after the date of the dismissal of the previous application (16-2-1932), The applicant, however, contended that for a certain period his decree had remained satisfied and that this period, namely, from the date of the sale in his favour and the date when the sale was set aside finally should be excluded. The question of limitation was decided in favour of the plaintiff by the executing Court, by the Additional District Judge, Ferozepore, on first appeal and by Dalip Singh, J. on second appeal. A Division Bench of the Lahore High Court, however, on a Letters Patent appeal held that the application for execution was barred by limitation, having been filed more than eight years after the dismissal of the previous application.