We are unable to support the order of the learned Subordinate Judge in this case. The final decree in O.S No. 15 of 1926 expressly provides for sale of item 6 to discharge the debt due to the 2nd defendant (appellant) under his prior mortgage. This is in pursuance of the provision in the preliminary decree declaring that he should be at liberty to apply for……the sale of the mortgaged property (item 6). Whether that direction is right or wrong is not a question which can be discussed by a Court executing the decree. It is quite impossible to hold that the decree is merely declaratory of the rights of the 2nd defendant.
As for the point of limitation it cannot be said that the appellant's application of 21st September 1932 was not an application in accordance with law. There was no obligation on him, under O. 21 R. 11 of the Code of Civil Procedure, to produce a copy of the decree with the application. Under O. 21, R. 11(3) of the Code of Civil Procedure the Court required him to produce a copy of the decree. He failed to do so and his application was accordingly rejected on 10th March 1933. His application when made was perfectly ‘in accordance with law’ and the order of 10th March 1933 was the final order on it. His present application dated 16th April 1934 was therefore clearly in time.
The appeal is accordingly allowed. The execution application must be restored to file and disposed of according to law. The contesting respondent, the plaintiff, will pay the appellant's costs in both Courts.
Appeal allowed.
N.R.R