Skip to content


Bohra Bhim Sen Vs. Nizam-ud-dIn Shah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported in(1918)ILR40All203
AppellantBohra Bhim Sen
RespondentNizam-ud-dIn Shah
Excerpt:
.....9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - this court has held in a case like the present that the high court's decree is the decree in respect of which an application for a final decree is to be made. , 39 all, 641. applying this authority to the present case time began to run from the 17th of june, 1912. the application was accordingly clearly beyond time......1911, on foot of a mortgage. two persons were made defendants to this suit, namely one musammat kadri begam and nizam-ud-din shah. the usual preliminary decree was granted by the court of first instance two appeals were filed in the high court, which dismissed the suit against nizam-ud-din shah, but gave a decree against musammat kadri begam. the high court's decree was dated the 17th of june, 1912. the court does not appear to have been asked to extend the time and did not do so. the present application was one made on the 16th of march, 1916. the application stated that musammat kadri begam, the sole defendant, had died and that nizam-ud-din shah was her heir. the application was one for the preparation of a final decree under order xxxiv, rule 5, several objections were taken by.....
Judgment:

Henry Richards, C.J. and Pramada Charan Banerji, J.

1. The facts connected with this appeal are as follows A suit was instituted in the year 1911, on foot of a mortgage. Two persons were made defendants to this suit, namely one Musammat Kadri Begam and Nizam-ud-din Shah. The usual preliminary decree was granted by the court of first instance Two appeals were filed in the High Court, which dismissed the suit against Nizam-ud-din Shah, but gave a decree against Musammat Kadri Begam. The High Court's decree was dated the 17th of June, 1912. The Court does not appear to have been asked to extend the time and did not do so. The present application was one made on the 16th of March, 1916. The application stated that Musammat Kadri Begam, the sole defendant, had died and that Nizam-ud-din Shah was her heir. The application was one for the preparation of a final decree under order XXXIV, rule 5, Several objections were taken by Nizam-ud-din Sbah. He tried to set up that the property was waqf. He also objected that the application for the decree was beyond time and that Musammat Kadri Begam had died more than six months before the application was made. The court below held, and we think rightly held, that Nizam-ud-din Shah could not set up the plea that the property was waqf. He could only make such objections to the execution of the decree as Musammat Kadri Begam whose heir he was, could have made and she could not have raised the objection that the property was waqf. The learned Subordinate Judge overruled the other two objections based on limitation. This Court has held in a case like the present that the High Court's decree is the decree in respect of which an application for a final decree is to be made. It has also held that article 181, schedule I, of the Limitation Act is the proper article and that time begins to run from the period for payment fixed by the High Court's decree, see Gajadhar Singh V. Kishan Jiwan Lal (1917) I. L. R., 39 All, 641. Applying this authority to the present case time began to run from the 17th of June, 1912. The application was accordingly clearly beyond time. Section 6 of the Limitation Act will not help the plaintiff, because that section only applies to the time for the institution of suits or the time for an application for the execution of the decrees, An application for a final decree in a mortgage suit is not an application for execution of a decree It is clear, therefore, that the application was beyond time. It is admitted that Musammat Kadri Begam died more than six months before the application was made. Order XXII, rule 4, provides that where a sole defendant dies and the right to sue survives the court on an application made in that behalf shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Sub-section (3) further provides that where within the time limited by law no application is made under sub-rule (1) the suit shall abate as against the deceased defendant. In the case of Muhammad Masihullah Khan v. Jarao Bai (1915) I. L. R., 37 All., 226. it was held that a suit for redemption is still a 'pending' suit after a preliminary decree has been made. It would, therefore, appear in the present case that there ought to have been an application to bring the heir of Musammat Kadri Begam on to the record within six months from the date of her death. Otherwise the suit would have abated. It is not, however, necessary for the decision of the present case that we should decide this last mentioned point.

2. We allow the appeal, set aside the order of the court below and dismiss the application of the respondent. The appellant will have his costs in both courts.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //