MAQBUL AHMAD Vs. PATESHRI PARTAB NARAIN SINGH

JUDGEMENT

(1.) This is an appeal from an order refusing to prepare a final decree in a contribution suit. A decree for about Rs. 80,000 was passed by the Additional Subordinate Judge of Basti on 7 May 1917, for recovery of the amount by sale of the six villages mentioned therein. This decree was drawn up on a printed form applicable to decrees under Order 20, Rules 6 and 7, Civil P.C, and not on the form prescribed for a mortgage decree under Order 34, Rule 4. Two sets of defendants appealed to the High Court but the plaintiff did not file any appeal or cross- objection. One of these appeals was allowed and the other was dismissed and the decree of the Additional Subordinate Judge was modified under an order of this Court dated 7 June 1920. The form of the decree was affirmed by the High Court and the period fixed for payment in the Court below was not extended.

(2.) Perhaps misled by the form on which the decree had been prepared in the Court below, the decree-holder treated it as a simple money decree and applied for its execution to the Court of the Subordinate Judge of Basti on 23 December 1920. By this time the Court of the Additional Subordinate Judge had been abolished. The property sought to be attached being ancestral, the execution was transferred by the Court to the Collector on 8 November 1921. In the Collector's Court objections were raised by some of the judgment-debtors that the proper course for the decree-holder was to apply for the preparation of a final decree and not to execute the preliminary decree.

(3.) From 20 May 1923 till 19 June 1923 (both days inclusive), the civil Courts were closed for the long vacation. On 20 June 1923, the decree-holder filed his application for the preparation of a final decree in the Court of the Additional Subordinate Judge of Basti. An Additional Court had then been re-established. On 4 August 1923, the Additional Subordinate Judge passed an order holding that the application had not been filed in the proper Court and directing that it should be returned for presentation to that Court. 5 August was a, Sunday and on 6th August, the applicant, took back his application and re-presented it to the Court of the Subordinate Judge at Basti on the same day. In the Court below the applicant sought to get the time extended by claiming the benefit off the time spent by him in prosecuting his application for execution from 23 December 1920 to 8th November 1921, also of the period of the long vacation, viz.,, from 20 May to 19 June 1923 as well as the time spent by him in prosecuting his application in the Court of the Additional Subordinate Judge, viz., from 20 June 1923 to 6th August 1923. The learned Subordinate Judge has rejected the application as being timebarred. He has held that the applicants were prosecuting the application in the Court of the Subordinate Judge in good faith but even allowing for the exclusion of that time the application is beyond time.