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Jira Bibi and ors. Vs. MajiruddIn Chowdhry - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1921Cal594,64Ind.Cas.849
AppellantJira Bibi and ors.
RespondentMajiruddIn Chowdhry
Cases Referred and Rameshvar Singh v. Homeshvar Singh
Excerpt:
limitation act (ix of 1908), section 15(1) - stay of execution--injunction--deduction of time--execution--application made after setting aside of earlier sale--revival of application. - .....in these circumstances, section 15, sub-section (1), of the indian limitation act applies, and the decree-holder is entitled to a deduction of the time between the date when the order for stay was made and the date when that order ceased to be operative. if this time be deducted, the third application must be deemed to have been made within time.3. the second application was made admittedly more than three years after the date of the first application. but it is material to observe that on the basis of the first application a sale was held on the 3rd may 1909 when the decree-holder himself became the purchaser. on the usual application by the judgment-debtor, this sale was set aside on the 14th february 1911. the position then is that no proceeding in execution could be taken so long as.....
Judgment:

1. This is an appeal from an order directing execution to proceed on the basis of a mortgage decree. The preliminary decree, which was made on the 14th November 1906, was followed by the final decree on the 7th September 1908. There have been five applications for execution (inclusive of the one now before the Court) made successively on the 16th November 1908, 18th March 1913, 12th January 1917, 4th April 1918 and 3rd October 1918. The substantial question in controversy is whether the present application is or is not barred by limitation. As the fifth application was made within three years from the date of the fourth application, which was made within three years from the date of the third application, the points in issue reduce to two, namely, first, whether the third application was barred by limitation, and secondly, whether the second application was barred by limitation.

2. The third application was made admittedly more than three years after the date of the second application. But during the pendency of the second application, a suit was instituted by a claimant for declaration of his title to a fourth share in the hypothecated properties and an injunction was issued at his instance. Although prima facie this injunction related only to the share claimed, on the 1st December 1913, the Execution Court ordered a stay of the entire proceedings. The suit instituted by the claimant was decreed on the 23rd May 1915; consequently, the execution was held up, as the result of the order of the Execution Court, from the 1st December 1913 to the 23rd May 1915. In these circumstances, Section 15, Sub-section (1), of the Indian Limitation Act applies, and the decree-holder is entitled to a deduction of the time between the date when the order for stay was made and the date when that order ceased to be operative. If this time be deducted, the third application must be deemed to have been made within time.

3. The second application was made admittedly more than three years after the date of the first application. But it is material to observe that on the basis of the first application a sale was held on the 3rd May 1909 when the decree-holder himself became the purchaser. On the usual application by the judgment-debtor, this sale was set aside on the 14th February 1911. The position then is that no proceeding in execution could be taken so long as the sale was in operation, from the 3rd May 1909 to the 4th February 1911. The principle of law applicable to such a situation is well settled. In the case of Moin-ud din Khan v. Chajju Singh 2 A.L.J. 276, an application was made for execution of a mortgage decree. A sale followed in due course, but on the petition of the judgment-debtor, the sale was set aside by the District Court and an appeal to the High Court preferred at the instance of the decree holder was dismissed. The decree-holder thereafter applied to the Court to proceed with the execution of the decree. In answer to the contention of the judgment-debtor that the application was barred by limitation, Mr. Justice Blair pointed out that the case fell within the rule laid down by the Full Bench in Rahim Ali Khan v. Phul Chand 18 A. 482 : A.W.N. (1896) 142 : 8 Ind. Dec. (N.S.) 1028 (F.B.), which has since been applied by another Full Bench. in the case of Ram Sarup v. Dasrath Tewari 9 Ind. Cas. 817 : 33 A. 517 : 8 A.L.J. 412. The application was not in substance an. application for execution de novo but an application to revive the former execution proceedings: as the order for sale made on the previous occasion had not been carried out according to law and the sale had been set aside, the Court was relegated to the position which it occupied at the time of the order for sale. The view we take is supported by the decision in Abdul Khayar v. Reazuddin Ahmad 1 Ind. Cas 341 : 13 C.W.N. 52l and is also in accord with the opinion expressed by a Full Bench of the Madras High Court in Muthu Korakki Chetty v. Mahamad Madar Ammal 51 Ind. Cas. 63, 48 M. 185, 26 M.L.T. 450, 33 M.L.J. 1: 11 L.W. 487 : (1920) M. W.N. 42 (F.B.). This principle of revival and continuity is further supported by the decisions of the Judicial Committee in Shaikh Kamaruddin Ahmad v. Jawahir Lal 32 I.A. 102 : 1 C.L.J. 381 : 2 A.L.J, 397 : 9 C.W.N. 601 : 15 M.L.J. 258 : 27 A. 334 : 7 Bom. L.R. 433 : 8 Sar. P.C.J. 810 and Rameshvar Singh v. Homeshvar Singh . 69 Ind. Cas. 636 : 48 I.A. 17 : 1 P.L.T. 731 : 19 A.L.J. 26 : 40 M.L.J. 1 : (1921) M.W.N. 21 : 33 C.L.J. 109 : 25 C.W.N 337 : 13 L.W. 546 : 6 P.L.J. 132 : 23 Bom. L.R. 721 (P.C.). In our opinion, the. second application for execution, which was made after the sale held on the basis of the first application had been set aside at the instance of the judgment-debtor, was in essence an application to revive and continue the earlier application, and from this point of view no question of limitation really arises. We hold accordingly that there is no substance in the contention that the present application is barred by limitation.

4. We may briefly notice a minor objection urged on behalf of the appellants, namely, that the respondents now seek to execute the decree in the character of mutwallis under an alleged wakf executed by the original decree-holder on the 19th October 1910, although no valid wakf was created by the deed. The terms of the wakfnama have been placed before us and. we see no reason to hold that the gift to charity. was illusory, and we hold that the respondents are competent to execute the decree.

5. The result is that the order of the District Judge is affirmed and this appeal dismissed with costs. We assess the hearing-fee at three gold mohurs.


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