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Zahurul Hasan and ors. Vs. Badri NaraIn and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad
Decided On
Reported inAIR1930All597
AppellantZahurul Hasan and ors.
RespondentBadri NaraIn and ors.
Excerpt:
.....act, clearly provides that the property directly and specifically in question, as it is in a suit brought on foot of a mortgage deed cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the court and on such terms as it may impose. 5. assuming that this part of the section applies to execution proceedings as is contended on behalf of the appellants, sub-section (2) of that section clearly disposes of the argument which is based on sub-section (1). sub-section (2)(the former) runs thus: we are clearly of opinion that this contention has no force. the learned advocate for the respondents has clearly stated before us..........of the objectors who are beneficiaries under the deed of wakf were not mentioned in the array of parties. the application was dismissed for certain reasons which it is not necessary to state. on 12th october 1925 another application which gave similar particulars was filed. the array of the parties was the same as before. in 1926 the objectors instituted a regular suit for a declaration that the house which muradbee had hypothecated as security was not liable to sale in execution of the decree obtained by the respondents. one of the defences was that the regular suit was barred by the provisions of section 47, civil p.c. this plea succeeded and the suit was dismissed on 22nd october 1926. an application was made by the appellants on 15th december 1926 to the court executing the decree.....
Judgment:

Niamatullah, J.

1. This is an execution second appeal arising out of an objection made by the appellants to the rights of the decree-holders to have certain property sold in execution of their decree. The objection has been dismissed by both the Courts below; hence the present appeal by the objectors. One Nurul Hasan executed a mortgage deed on 15th October 1914 in favour of Ghasi Ram, Badri Narain and others, the decree-holder-respondents, for a certain sum of money, hypothecating a house. By a deed of even date his mother Muradbee executed a bond hypothecating another house belonging to herself as collateral security for due payment of the money secured by the deed executed by her son. The mortgagees obtained a preliminary decree on 9th November 1917 on foot of the mortgage deed and the security bond. Nurul Hasan and Muradbee were parties to the suit. On 24th June 1918 a final decree was passed against the aforesaid two persons. The decree-holders applied on 9th August 1918 for execution of the decree. In course of the execution proceedings which followed, a compromise was arrived at between the decree-holders on the one side and the judgment-debtors on the other, It was agreed that the decretal amount would be paid by certain instalments and that on failure to pay four of the instalments the whole of the decretal amount would become payable. It was also agreed that the house belonging to Muradbee, which had been hypothecated under the security bond should not be sold till the House hypothecated in the mortgage deed executed by Nurul Hasan was sold and the sale proceeds proved to be insufficient for satisfaction of the decretal amount. On 17th April 1920 Muradbee executed a deed of wakf in respect of certain properties including the house which she had hypothecated under the security bond. Subsequently Muradbee died. By an order dated 18th July 1921 the decree-holders certified payment by the judgment-debtors of a gum of Rs. 600 towards part satisfaction of the decree.

2. On 29th February 1924 the decree-holders made an application for execution of their decree praying for sale of both the houses. In column 2 of the application, that is the one in which the names of the parties are to be set forth, she mentioned, inter alia, the names of Nurul Hasan, the son of Mt. Muradbee, and of certain other persons who are the heirs of Muradbee under the Mahomedan law. The names of the objectors who are beneficiaries under the deed of wakf were not mentioned in the array of parties. The application was dismissed for certain reasons which it is not necessary to state. On 12th October 1925 another application which gave similar particulars was filed. The array of the parties was the same as before. In 1926 the objectors instituted a regular suit for a declaration that the house which Muradbee had hypothecated as security was not liable to sale in execution of the decree obtained by the respondents. One of the defences was that the regular suit was barred by the provisions of Section 47, Civil P.C. This plea succeeded and the suit was dismissed on 22nd October 1926. An application was made by the appellants on 15th December 1926 to the Court executing the decree raising the same question as was raised in the regular suit. It was also pleaded that the application dated 12th October 1925 was barred by limitation. The decree-holders controverted these pleas and urged that an application of the kind made by the appellants was not maintainable under Section 47, Civil P.C. This latter objection has been overruled by the Courts below. No attempt has been made to revive it before us. We need not, therefore, take any further notice of it. The only two questions which were seriously considered by the Courts below and which have been argued before us are:

1. Whether the application dated 12th December 1925 is barred by limitation,

2. Whether the house to which the objection relates is not saleable in execution of the decree obtained by the respondents.

3. As regards the first question the argument addressed to us is that Section 22, Lim Act, is applicable to execution proceedings, though in terms it refers only to a suit. It is, therefore, argued that the application dated 12th October 1925 should be considered to have been made against the objectors when they were impleaded as parties to it. Now they were not impleaded as parties to that application till at any rate 5th April 1928 when the learned District Judge ruled in deciding the appeal before him that the objectors were necessary parties and should be impleaded as such. It is contended that the application for execution should be considered to have been made against the objectors for the first time on 5th April 1928 which is more than three years from the date of the final decree. Consequently it is said to be barred by limitation. We are unable to accede to this contention. As the question whether an application for execution of a decree is barred by limitation should be determined with reference to the provisions of Article 182. Lim. Act., Clause (5) of that Article gives a fresh start to limitation from the date of

the final order passed on an application made in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree or order.

4. If the application dated 29th February 1924 be considered to have been made in accordance with law so as to attract the provisions of Article 182(5), the subsequent application dated 12th October 1925 which is in question before us will be likewise a good application being in all respects identical with the former. It has been vehemently argued before us that the objector-appellants not having been impleaded as parties to either of these applications, they cannot be considered to have been made against them and that, therefore, the application for execution against the objectors was barred by time on 5th April 1923 when it should be considered to have been made against them there being an interval of more than three years between the last mentioned date and 18th July 1921 which is assumed to be the last starting point for limitation. From the statement of facts already set forth it will appear that the deed of wakf was executed subsequent to the final decree obtained by the respondents. It was, therefore, affected by the rule of lis pendens. Section 52, T.P. Act, clearly provides that the property directly and specifically in question, as it is in a suit brought on foot of a mortgage deed cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court and on such terms as it may impose. It is not suggested that the authority of the Court was obtained by Mt. Muradbee in making the wakf which cannot, therefore, affect the right of the decree-holders to obtain a sale of the mortgaged property as directed by the final decree. This being so it is not necessary that those who acquired a beneficial interest under the deed of wakf should be impleaded as parties to the application for execution of the decree. No authority has been cited before us to substantiate the contention put forward by the learned advocate for the appellants to the contrary. Section 22, Sub-section (1), Lim. Act, provides that:

where, after the institution of a suit a new plaintiff or defendant is substituted or added the suit shall as regards him be deemed to have been instituted when he was so made a party.

5. Assuming that this part of the section applies to execution proceedings as is contended on behalf of the appellants, Sub-section (2) of that section clearly disposes of the argument which is based on Sub-section (1). Sub-section (2)(the former) runs thus:

Nothing in Sub-section (1) shall apply to a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff,

6. In other words a transferee pendente lite who acquires an interest which may come in conflict with the rights of the decree-holder under the decree cannot plead limitation on the ground that the suit or proceedings should be deemed to have been instituted or taken against him only on the date he was impleaded as a party. It is not necessary for the decree-holder to take notice of transfers in (his) favour of such transferee because Section 52, T.P. Act, declares the paramount right of the decree-holder to proceed against the property specifically directed to be sold by his decree. Reverting to the language of Article 182(5), Lim, Act, we entertain no doubt that the applications dated 29th February 1924 and 12th October 1925 were in all respects in accordance with law and should, therefore, be considered to be within limitation, the first having been made within three years of 18th July 19 21 when part payment of the decree was certified. For these reasons we repel the contention of the appellants as regards the plea of limitation.

7. We have not been addressed any substantial argument on the merits. It has not been shown to us why the property had been hypothecated by Mt. Muradbee as security should not be liable to sale in execution of the decree obtained by the respondents against her. The lower appellate Court has rightly ruled that it should not be sold till the house hypothecated by the principal debtor Nurul Hasan is sold and the proceeds of the sale prove to be insufficient for the satisfaction of the decree.

8. It was argued by the learned advocate for the appellants that in so far as the two applications dated 29th February 1924 and 12th October 1925 pray for sale of both the houses the compromise dated 24th August 1919 should be deemed to have been repudiated by the decree-holders. We are clearly of opinion that this contention has no force. There is nothing in the aforesaid application which may amount to any repudiation of the compromise. The learned advocate for the respondents has clearly stated before us that he sticks to the compromise. Even if any statement which could be considered as repudiation of the compromise had been made in the applications, which is not the case, it could be withdrawn. In any case the question of limitation which we have disposed of has no reference to the existence or otherwise of the compromise. In either view of the matter the decree-holders' last application dated 12th October 1925 is unaffected by any rule of limitation. For the reasons stated above we uphold the order of the lower appellate Court appealed from. The appeal is accordingly dismissed with costs.


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