RATI RAM Vs. NADAR

JUDGEMENT

(1.) This second appeal by a decree-holder in an execution case arises out of the following state of facts. One Munshi Lal held a decree absolute for sale on a mortgage passed on December 19th, 1906. He took out execution of the same on September 23rd, 1909, but died while the execution proceedings were pending. On September 29th, 1910, his sons, Jokhi Parshad and Rati Ram, applied to be brought on the record as his legal representatives. The former was of full age and the latter a minor, the application was in the name of both, and Jokhi Parshad also asked to be allowed to act as the next friend of his minor brother. Notices were issued to the judgment-debtors to appear on December 10th, 1910, and show cause why this application should not be granted. In the meantime Jokhi Parshad died; and on November 24th, 1910, the Pleader whom he had engaged informed the Court of this fact and stated that he had no instructions to proceed further with the application. The Court took note of this statement, but directed the matter to come up for orders on December 10th, 1910, the date fixed. On that date no one appeared on behalf of the decree holder and the Court ordered the application for execution originally made by Munshi Lal to be struck off the files of pending cases as an application which had proved infructuous.

(2.) Rati Ram, having in the meantime attained majority, presented to the Court on July 16th 1917, the application out of which (his appeal arises. It is drawn up in tie prescribed form for applications for execution of decrees, and the relief sought is set forth in the following words: In continuation of the application for execution No. 869 of 1909 it is prayed that it may be perused and formal orders for execution passed.

(3.) The lower Appellate Court has dismissed the application as time-barred, and we have to decide if this order is right.