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Haripada Datta Vs. Sashi Bhusan Basu - Court Judgment

LegalCrystal Citation
Subject Civil
CourtKolkata
Decided On
Reported inAIR1928Cal668,114Ind.Cas.792
AppellantHaripada Datta
RespondentSashi Bhusan Basu
Cases ReferredKhulna Loan Co. Ltd. v. Jnanendra Nath Bose A.I.R.
Excerpt:
- .....on the ground that it was barred by limitation under the provisions of section 48, civil p.c. the decree holder-brought a suit on a mortgage. that suit was compromised between the parties. the mortgaged properties had actually been sold before the date of compromise in execution of a rent decree. by the compromise a certain sum was decreed in favour of the plaintiff-decree holder which was payable in instalments, and it was provided that if two; successive kists were not paid all the instalments would be, considered as defaulted and the whole amount would at once be realized by means of execution of the decree with interest at 12 annas per cent per mensem. at the end of the decree it was statedthat the mortgaged properties in suit being sold in auction for arrears of rent in rent.....
Judgment:

B.B. Ghose, J.

1. This is an appeal by the decree-holder against an order dismissing his application for execution of a decree on the ground that it was barred by limitation under the provisions of Section 48, Civil P.C. The decree holder-brought a suit on a mortgage. That suit was compromised between the parties. The mortgaged properties had actually been sold before the date of compromise in execution of a rent decree. By the compromise a certain sum was decreed in favour of the plaintiff-decree Holder which was payable in instalments, and it was provided that if two; successive kists were not paid all the instalments would be, considered as defaulted and the whole amount would at once be realized by means of execution of the decree with interest at 12 annas per cent per mensem. At the end of the decree it was stated

that the mortgaged properties in suit being sold in auction for arrears of rent in rent execution case No. 46 of 1908 the properties mentioned in the solenama will remain under mortgage.

2. There was default and the decree-holder obtained what he called a final decree on that solenama on 23rd January 1911. The properties which were under mortgage on the terms of the solenama were then sold and on 11th February 1920 the decree-holder purported to obtain a decree under Order 34, Rule 6, Civil P.C., against the person of the judgment-debtor. The present application was made on 23rd November 1925. The learned Subordinate Judge held that this application having been made more than 12 years after the date of the solenama decree dated 11th May 1909 the application is barred.

3. It is contended by the learned Advooata for the decree-holder that the Subordinate Judge is wrong because the personal decree was a fresh 'decree obtained in February 1920 and the 12 years prescribed' under Section 48, Civil P.C., should be counted, from that date. There seems to be an obvious fallacy in the contention; because under the solenama decree the decree-holder was entitled to execute his decree if there was default in payment of two, successive kists and there was no necessity for him to obtain a decree Under Order 34, Rule 6; nor does Order 34, Rule 6 apply to a case like this where a decree was passed upon the terms of a solenama. The real question is that the decree passed on the basis of the solenama should be construed in order to find what the rights to the parties were. The Subordinate Judge in my opinion rightly held that a compromise decree was passed according to the solenama in 1909 and therefore on the strength of the case, Khulna Loan Co. Ltd. v. Jnanendra Nath Bose A.I.R. 1917 P.C. 85, this application is barred by limitation.

4. The appeal is therefore dismissed with Costs. The hearing fee is assessed at five gold mohurs.

Garlick, J.

5. I agree.


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