MT DULHIN Vs. HARIHAR GIR

JUDGEMENT

(1.) The only point for decision is whether as held by the Subordinate Judge the application presented to him for execution of a mortgage decree by sale of the mortgaged properties was barred by time. The Subordinate Judge was of opinion that Section 48, Civil P.C., was a bar. The plaintiff (now decree, holder) had sued on three mortgage bonds and obtained a preliminary decree dated 23 June 1922 for approximately Rs. 42,000. The decree mentioned as usual a period of grace which having expired the decree-holder applied for and obtained a decree-absolute for sale dated 19 December 1923. He applied to execute this decree on 16th August 1926 and was met by an objection on behalf of some of the judgment, debtors that the decree in the form in which it had been drawn was not executable because the debts due on the three mortgage bonds were separate debts secured on different items of property and the amounts for which the several properties were liable must be specified in the decree before it could be executed.

(2.) The Subordinate Judge disallowed this objection, but, on appeal, this Court on 3 August 1928 reversed that decision and said referring to the judgment in the original suit that the decree as it stood could not be executed and the Subordinate Judge must proceed to execute the decree substantially as three decrees. That being so, the order of the lower Court directing execution to proceed was set aside and the case remanded for disposal according to law. Thereafter on 15th September 1928 the decree-holder suffered the execution to be dismissed for default. He next applied in 1930 for amendment of the decree which was duly ordered to be done on 16 July 1930. Subsequently he found that some further amendment was necessary and obtained orders to that effect on 27 August 1932 and 24 September 1932. On 8 July 1933 he made his second application to execute the decree and this application was dismissed on 20 June 1934 for default in prosecution. The third application to execute the decree was presented on 2 January, 1937 and is the application against which the objection under Section 48, Civil P.C., has been allowed by the Subordinate Judge. The Subordinate Judge was of opinion that the period of 12 years began to run from 19 December 1923 the date of the decree absolute and expired in December 1935.

(3.) For the appellants, reference is made to the words in Section 48 "12 years from the date of the decree sought to be executed" and it is said that when there was no executable decree in existence before 16 July 1930, the decree sought to be executed must be considered to be of that date and 12 years will run from that date and it has further been suggested that 24 September 1932 again gives a starting point available to the decree-holder for computing the period of 12 years laid down in Section 48. In support of this contention reference is made to Baldeo Shukul V/s. Syed Yusuf (1921) 60 I.C. 318 where a single Judge of this Court took the view that the words "decree sought to be executed" must include the amended decree. The learned Judge did not quote authority for his view, but he referred to what was generally understood to be the law under the old Limitation Act when Art. 179 had to be construed. It may be that the learned Judge was referring to such decisions as that in Muhammad Suleman Khan V/s. Muhammad Yar Khan (1894) 17 All. 39 in which although Art. 179, as it then stood, contained no reference to the date of the amended decree as distinct from the date of the decree itself, the date of decree had been held for the purposes of that Art. to mean or at least to include the date of the amended decree where there had been an amendment.