Jira Bibi And Others Judgment-Debtors v. Majiruddin Chowdhury (Decree-Holder) And Another

1. This is an appeal from an order directing execution to proceed on the basis of a mortgage decree. The preliminary decree, which was made on the 14th November, 1906, was followed by the final decree on the 7th September, 1908. There have been five applications for execution (inclusive of the one now before the Court) made successively on the 16th November, 1908, 18th March, 1913, 12th January, 1917, 4th April, 1918, and 3rd October, 1918. The substantial question in controversy is whether the present application is or is not barred by limitation. As the fifth application was made within three years from the date of the fourth application, which was made within three years from the date of the third application, the points in issue reduce to two, namely, first, whether the third application was barred by limitation, and secondly, whether the second application was barred by limitation.

2. The third application was made admittedly more than three years after the date of the second application.

3. But during the pendency of the second application, a suit was instituted by a claimant for declaration of his title to a fourth share in the hypothecated properties and an injunction was issued at his instance. Although prima facie this injunction related only to the share claimed, on the 1st December, 1913, the Execution Court ordered a stay of the entire proceedings. The suit instituted by the claimant was decreed on the 23rd May, 1915; consequently, the execution viras held up, as the result of the order of the Execution Court, from the 1st December, 1913, to the 23rd May, 1915. In these circumstances, Section 15, Sub-section (1) of the Indian Limitation Act applies, and the decree-holder is entitled to a deduction of the time between the date when the order for stay was made anil the date when that order ceased to be operative. If this time be deducted, the third application must be deemed to have been made within time.

4. The second application was made admittedly more than three years after the date of the first application. But it is material to observe that on the basis of the first application a sale was held on the 3rd May, 1909, when the decree-holder himself became the purchaser. On the usual application by the judgment-debtor, this sale was set aside on the 14th February, 1911. The position then is that no proceeding in execution could be taken so long as the sale was in operation, from the 3rd May, 1909, to the 4th February, 1911. The principle of law applicable to such a situation is well settled. In the case of Moin-ud-din Khan v. Chajju Singh (1), an application was made for execution of a mortgage-decree. A sale followed in due course, but on the petition of the judgment-debtor, the sale was set aside by the District Court and an appeal to the High Court preferred at the instance of the decree-holder was dismissed. The decree holder thereafter applied to the Court proceed with the execution of the decree in answer to the contention of the judgment-debtor that the application. We barred by limitation, Mr. Justice ??? pointed out that the case fell within the rule laid down by the Full Bench in Rahim Ali Khan v. Phul Chand (2), which has since been applied by another Full Bench in the case of Ram Samp v. Dai rath Tewari (3). The application was no in substance an application for execution de novo but an application to revive the former execution proceedings; as the order for sale made on the previous ??? had not been carried out according ??? law and the sale had been set aside, ??? Court was relegated to the position which it occupied at the time of the order to sale. The view we take is supported to the decision in Abdul Khayar v. Reazuddi Ahmad (4), and is also in accord with the opinion expressed by a Full Bench of the Madras High Court in Muthu Koraklh Chetty v. Mahamad Madar Ammal (5). This principle of revival and continuity further supported by the decisions of the Judicial Committee in Shaikh ??? Ahmad v. Jawahir Lal (6) and ??? Singh v. Homeshvar Singh (7). In our ???, the second application for execution which was made after the sale held on the basis of the first application had been ??? aside at the instance of the judgment-debtor, was in essence an application to ??? and continue the earlier application, an from this point of view no question limitation really arises. We hold accordingly that there is no substance in the contention that the present application; barred by limitation.

5. We may briefly notice a minor objection urged on behalf of the appellant namely, that the respondents now seek execute the decree in the character mutwallis under an alleged wakf executed by the original decree-holder on the 19th October, 1910, although no valid wakf was created by the deed. The terms of the wakfnama have been placed before us and we see no reason to hold that the gift to charity was illusory, and we hold that the respondents are competent to execute the decree.

6. The result is that the order of the District Judge is affirmed and this appeal dismissed with costs. We assess the hearing-fee at three gold mohurs.

7. Appeal dismissed.