Baldeo Singh Decree-Holder v. Ram Sarup And Others Judgment-Debtors

Gokul Prasad, J.:— This appeal arises out of certain execution proceedings. It appears that one Jahangir obtained a decree against Nathu and Dalip on the 2nd of June, 1913. The respondents, Ram Sarup and Jai Dayal are subsequent purchasers of a part of the mortgaged property in execution of a simple money-decree.

2. On the 11th of December, 1914, the decree-holder got an absolute decree for sale. After this Jahangir, the original decree-holder, sold the decree to Baldeo Singh, the present decree-holder, appellant. On the 15th of July, 1916, Baldeo Singh, appellant applied for execution of his decree. On the 11th of August, 1916, Ram Sarup and Jai Dayal, the auction-purchasers aforesaid, brought a suit for a declaration that the property purchased by them was not saleable and, in the alternative, that in any event they were entitled to a prior charge of nearly Rs. 2,000. The fact of the institution of this suit was brought to the notice of the execution Court and the execution Court thereupon fixed a certain date by which the decree-holder was directed to produce a copy of the judgment in that Court, before the proceedings could be transferred to the Collector. This not having been done, the Judge of the executing Court dismissed the application. The present application for execution was put in on the 13th of September, 1919, that is, more than three years after the previous application for Execution. The Judge of the first Court allowed the objection and the lower appellate Court has confirmed the order holding that the present application for execution is time-barred.

3. The first contention on behalf of the appellant is that the order of the Court stopping the transmission of the decree to the Court of the Collector till a copy of the judgment in the newly instituted suit had been filed amounted to a stay of execution. The only meaning which we can attach to this order is that the Court told the decree-holder that it would not send the record to the Court of the Collector until a copy of the order in that suit was filed; in other words, the Court refused to execute the decree. This is supported by the fact that when a copy of such an order was not produced the application for execution was dismissed. The compliance of this order of the court, namely, the production of a copy of the judgment in that suit became possible to the decree-holder only on or after the 18th of July, 1917, when that suit was decided, and if we exclude the period from 11th of August, 1916, to the 18th of July, 1917, the period for which the suit was pending in the first Court, the present application is within time. There is another aspect of the case from which also this application would be within time. The suit, as we have stated above, was for two reliefs; (1) that the property was not saleable and (2) the alternative relief was that the property was subject to a prior encumbrance. On the 18th of July, 1917, the Court gave the then plaintiffs the second relief claimed by them, namely, that they could put up their prior charge of nearly Rs. 2,000 as a shield against any person who got the property in Execution. In order to remove this difficulty in the way of the execution of big decree unconditionally the decree-holder appealed successfully. The decree of the 19th of March, 1918, would go to show that this appeal must have been filed within 3 years of the present application for execution and this must be considered to have been a step-in-aid of execution, ae by it the decree-holder wanted to remove certain difficulties which stood in the way of his getting the full benefit of his decree. From this view also the present application is within time. We are therefore of opinion that the order of the Court below dismissing the application for execution as being barred by time should be set aside. We accordingly set aside the order and direct the Court of firsts instance to re-admit the application to its original number and proceed to hear and determine the same according to law. The decree-holder will have his costs in all Courts.

4. Order set aside.