SHEONARAIN PRASAD SINGH Vs. GANGA PRASAD SAHU

JUDGEMENT

(1.) This is a defendants appeal from concurrent decrees of the Courts below decreeing the plaintiffs claim for Rs. 1,700 and interest thereon at the rate of twelve per cent, per annum from 27 July 1933. On 12 July 1920, one Prasad Sahu, predecessor-in-interest of plaintiffs 2 and 3, obtained a preliminary mortgage decree for Rs. 7379 against Asfandiar Khan, and on 13 June 1921, this decree was made absolute. On 1 August 1924, Prasad Sahu assigned this mortgage decree to defendants 1 to 3 and two other persons for Rs. 5,000. A sum of Rs. 3300 was paid to Prasad Sahu and the remainder, namely Rs. 1700, was left with defendants 1 to 3 to be paid to plaintiff 1 who was a creditor of Prasad Sahu. It was a term of the agreement that this sum was not to be paid to plaintiff 1 until defendants 1 to 3 had realized the decree.

(2.) Defendants 1 to 2 executed the decree assigned to them in execution case No. 289 of 1932 and on 11 July 1933, the judgment-debtor deposited the decretal amount in Court. On 18 July 1938, this amount was attached by some third party, but on 21 July 1933, the attachment order was withdrawn and the execution case was dismissed on full satifaction to the decree-holder. On 24 July 1933, defendants 1 to 3 withdrew the money which had been so deposited. For some reason or other defendants 1 to 3 refused to pay the sum of Rs. 1,700 to plaintiff 1 as they had agreed in the con-tract of 1 August 1924, and on 22nd July 1936, the plaintiffs brought this suit to recover the sum of Rs. 1,700 together with interest. Both the Courts below decreed the plaintiffs claim; but it has been con-tended by Mr. Nawal Kishore Prasad on behalf of the appellants that the decrees of the Courts below cannot be sustained.

(3.) The first point taken by the appellants is that this suit was barred by limitation. As I have stated earlier, the sum of Rs. 1700 was not payable by defendants 1 to 3 to plaintiff 1 until the defendants had realized the decree. The decretal amount was deposited by the judgment-debtor in Court on 11 July 1933, but this was attached by a third party. However, on 21 July 1933, the attachment order was withdrawn and the execution case dismissed because the- decree had been fully satisfied. It has been contended that the decree was realized at latest by 21 July 1933, and that time ran from that date. The suit was actually brought on 22 July, 1936, over three years from the date when the decree was realized. If this was a suit to recover a sum of money due, it would have been barred in three years, and it might well be said that the present suit was out of time. The trial Court appears to have thought that the present suit was one for specific performance and that Art. 113, Limitation Act applied.