Allahabad High Court
Dambar Lal vs B. Chand Mal And Ors. on 29 March, 1932
Equivalent citations: AIR1932ALL484, AIR 1932 ALLAHABAD 484
JUDGMENT Bennet, J.
1. This is an execution first appeal by a judgment-debtor and the sole point raised is that the application for execution is beyond time. There was a final decree for sale in a suit on a mortgage, the decree being dated 26th October 1925. The present application for execution is dated 1st August 1930. The decree-holder claims that limitation was saved under the Limitation Act, Article 182, Clause (5) by an application under Order 21, Rule 11, dated 26th November 1927. The sole question is whether that application was an "application in accordance with law" as is necessary under the Limitation Act article quoted. On behalf of the appellant it is alleged that the application was not in accordance with law because it was not accompanied by the affidavit required by Order 21, Rule 66(3) and the certificate of the Sub-Registrar as regards prior encumbrances. We consider that that Certificate and affidavit should be filed at a subsequent stage from the application for execution under Order 21, Rule 11. When the application for execution was filed the Court should have dealt with it under Order 21, Rule 17 which lays down that the Court is to ascertain whether such of the requirements of Rs. 11 to 14, as may be applicable to the case, have been complied with. It is not shown that any of these rules Rs. 11 to 14 were not complied with and therefore in our opinion the application under Rule 11 was an application according to law. We therefore consider that limitation was saved by this application and we dismiss this appeal with costs.