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Syed Nizam UddIn Shah Vs. Bohra Bhim Sen - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in43Ind.Cas.870
AppellantSyed Nizam UddIn Shah
RespondentBohra Bhim Sen
Excerpt:
civil procedure code (act v of 1908), order xxxiv, rule 5, order xxii, rule, 4, - limitaion act (ix of 1908 , section 6, schedule i, article 181--mortgage suit--preliminary decree--appeal--final decree, application for--limitation, commencement of--death of defendant failure to bring representative on, record--abatement. - - 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. 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 mnsammat kadri begum and nizam uddin 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 uddin shah but gave a decree against musammat kadri begum. 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 begum, the sole defendant, had died and' that nizam uddin 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.....
Judgment:

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 Mnsammat Kadri Begum and Nizam Uddin 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 Uddin Shah but gave a decree against Musammat Kadri Begum. 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 Begum, the sole defendant, had died and' that Nizam Uddin 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 Uddin Shah. 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 Begum had died more than six months before the application was made. The Court below held, and we think rightly held, that Nizam Uddin 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 Begum whose heir he was could have made, and she could not have raised the objection that the property was waqf. The letrned 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. Hishen Jiwan Lal 42 Ind. Cas. 93 : 15 A.L.J. 731 : 39 A. 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 a decree. 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 Begum 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 representatives 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 Masih Ullah Khan v. Jarao Bai 27 Ind. Cas. 771 : 37 A. 226 : 13 A.L.J. 307 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 Mus mnat Kadri Begum 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, including in this Court fees on the higher scale.


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