HARIHAR GIR Vs. DULHIN

JUDGEMENT

(1.) This is an appeal by Mahanth Harihar Gir, one of the judgment-debtors, against an order rejecting his objections under Section 47, Civil P.C. Of the various objections taken by him, the only one pressed in this appeal is that the execution is barred under Section 48, Civil P.C., having been filed more than twelve years after the date of the decree. The decree under execution is a mortgage decree which was passed on 23 December 1923, and the present execution was filed on 24 February 1936, under the following circumstance s: The first execution was taken out in Execution Case No. 214 of 1926. In course of that execution, some of the judgment-debtors interested in items 1 to 5 of the mortgaged properties paid Rs. 4800 to the decree-holders on or about 12 April 1929, on the understanding that the other mortgaged properties, namely items 6 to 9 would be first put up to sale for realization of the balance of the decretal amount, and in case of deficiency, items 1 to 5 might be sold. On 12 April 1929, the decree-holders accordingly prayed for sale of items 6 to 9 and the prayer was allowed by the Court after hearing the parties concerned. On 15 April 1929, items 6 to 9 were sold and purchased by outsiders and the sale proceeds were sufficient to satisfy the decree.

(2.) On 11 May 1929, Jagat Prasad Singh, one of the judgment-debtors who was interested in the properties sold, deposited the decretal amount with compensation and prayed for setting aside the sale under Order 21, Rule 89, Civil P.C. Almost immediately afterwards Jagat Prasad brought a Title Suit No. 21 of 1929, for a declaration that the mortgage decree and the; auction sale were not valid and binding against him and for refund of the money that was deposited by him under Order 21, Rule 89. By an order passed in that suit on or about 16 May 1929, the decree-holders were restrained from withdrawing the money deposited. Thus, the decree-holders could not withdraw the money which remained in deposit. The last order in the execution case was recorded on 23 May 1929, to the effect that the case was dismissed on full satisfaction and the sale was set aside. The Title Suit No. 21 of, 1929 was eventually decreed on 27 February 1933 and Jagat Prasad was allowed to obtain a refund of the money which he had deposited under Order 21,Rule 89.

(3.) Against this decision, the decree-holders, on 10 July 1933, preferred an appeal to this Court which was not decided until 27 August 1938. This Court substantially confirmed the decree of the trial Court. In the meantime, the present application to execute the decree by sale of the properties Nos. 1 to 5 was presented as already stated on 24 February 1936, and numbered as Execution, Case No. 38 of 1936. It was resisted on various grounds; but we are only concerned here with the plea that it is barred by time.