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Hira Prasad Pandey Vs. Kashi Prasad and ors. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in18Ind.Cas.897
AppellantHira Prasad Pandey
RespondentKashi Prasad and ors.
Excerpt:
execution of decree - decree conditional on redemption of prior mortgage--prior mortgage redeemed after period of limitation--time bar. - .....that the decree-holder was not entitled to bring that property to sale without redeeming the prior mortgage. in view of the course of rulings of this court which existed at that time, the claim was decreed on the 26th of november 1897. the decree passed in that suit was to the effect that so long as the prior mortgage existed, the decree-holder was not entitled to bring the property to sale. the effect of the decree was that the property could not be sold subject to the prior mortgage and it could not be sold until the mortgage was redeemed. in substance the decree of the 25th of november 1897 added a further condition to the decree of 1885 imposing on the decree-holder the liability to redeem the prior mortgage before he could bring the property to sale under his own subsequent.....
Judgment:

1. This appeal arises out of an application for the execution of a decree which has been dismissed by the Court below. The decree was passed on a mortgage in 1885. Applications for execution were made until the year 1897, when a proclamation was issued for sale of certain property. The 20th of July 1897 was fixed for the sale of the said property. Thereupon, Ram Narain and others, who held a prior usufructuary mortgage of the 2nd of July 1880 in respect of the same property, brought a suit for a declaration that the decree-holder was not entitled to bring that property to sale without redeeming the prior mortgage. In view of the course of rulings of this Court which existed at that time, the claim was decreed on the 26th of November 1897. The decree passed in that suit was to the effect that so long as the prior mortgage existed, the decree-holder was not entitled to bring the property to sale. The effect of the decree was that the property Could not be sold subject to the prior mortgage and it could not be sold until the mortgage was redeemed. In substance the decree of the 25th of November 1897 added a further condition to the decree of 1885 imposing on the decree-holder the liability to redeem the prior mortgage before he could bring the property to sale under his own subsequent mortgage. The decree was never executed since the year 1897. The present application for execution was made on the 1st of February 1912. It is contended on behalf of the decree-holder that the decree of the 26th of November 1897 imposed an obstacle in the way of his executing the decree and that time did not begin to run against him until he redeemed the prior mortgage of 1880, which he did in 1910, and that; therefore, he was entitled to execute the decree. We are unable to agree with this contention. It is true the decree of 1897 declared that the decree-holder must redeem the prior mortgage before he could sell the property but there was nothing to prevent the decree-holder redeeming the prior mortgage at once, that is, within the time allowed by law for applying for the execution of the decree. In other words, the removal of the so-called obstacle was entirely in his own hands. If he chose to wait for 13 years, it was his own fault that the decree is no longer capable of execution. It was next contended that the decree-holder was a minor until March. 1907. Assuming that this was so, his present application is beyond three years from the date of his attaining majority. From either point of view, therefore, the application for execution is time-barred and the order of the Court below is right.

2. We accordingly dismiss the appeal with costs.


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