Patna High Court
Syed Ibrahim Hussain Khan And Ors. vs Sheopratap Narain on 15 May, 1925
Equivalent citations: 89IND. CAS.886, AIR 1926 PATNA 129
JUDGMENT Kulwant Sahay, J.
1. This is an appeal by the decree-holder against an order of the Subordinate Judge of Saran, dated the 29th March 1924, whereby he allowed the objection of the judgment-debtor and dismissed the application for execution.
2. The decree-holder obtained a mortgage-decree on the 28th February 1910. By this decree future interest was not allowed. There was an appeal by the defendant against the mortgage decree and a cross-appeal was filed by the plaintiffs as regards the future interest. The appeal was dismissed by the Calcutta High Court on the 30th July 1914 with costs amounting to Rs. 540-8-6 The cross-appeal of the plaintiff was dismissed for default. An application was made for restoration of the cross-appeal which was allowed and ultimately the cross appeal was decreed on the 16th February 1916, whereby the future interest was ordered to be added to the mortgage-money. The decree was amended accordingly on the' 29th August 1917 Pending the hearing of the appeal in the High Court, the plaintiff decree-holder assigned his interest in the decree to one Rai Gulab Chand reserving to himself the costs which might be allowed to him in the appeal to the High Court. The assignee executed his decree and realised the mortgage money. The original decree-holder, applied for execution of the decree for costs awarded by the High Court and for realizations of future interest by an application filed on the 24th August 1918. This was registered as Execution Case No. 146 of 1918. Two objections were filed to this execution, one by the judgment-debtor and the other by the assignee of the decree. The objection of the assignee was that under the assignment future interest could not be realised by the decree-holder but the assignee was entitled to the same. The objection of the judgment-debtor related to certain other matters. Both objections were disallowed, the objection of the assignee by an order of the 10th February 1919 and that of the judgment-debtor by an order dated the 12th February 1919. It appears that in the meantime the assignee had filed a formal application for execution for realisation of the future interest and costs This application was filed on the 18th January 1919 and was registered as Execution Case No. 9 of 1919, An objection was filed to this execution by the decree-holder and the application was ultimately dismissed on the 12th February 1919.
3. Three appeals were preferred to the High Court against these orders, Appeal No. 134 of 1919 was by the judgment-debtor arising out of the Execution Case No. 146, Appeal No. 154 of 1919 was by the assignee and arose out of the same Execution Case No. 146, and Appeal No. 127 of 1919 was also by the assignee against the order passed in his own Execution Case No. 9 of 1919. All these three appeals came on for hearing and. were disposed of together by one judgment dated the 10th August 1920. The result was that future interests were declared to be realisable, by the assignee and the costs only by the original decree-holder.
4. The application for execution out of which the present appeal arises was filed on the 10th August 1923 and the prayer was for the realisation of the costs by sale of the remaining mortgaged properties. With the application for execution, however, no list was given of the mortgaged properties but subsequently a list was filed setting out the properties which the decree holder wanted to sell for realisation of the costs.
5. An objection was filed by the judgment-debtor who was the defendant No. 2 in the case on the ground that the application was barred by limitation and that the decree could not be realised from properties other than the mortgaged properties and the properties from which the decree-holder sought to realise his decree were not the mortgaged properties.
6. This objection has been allowed by the Subordinate Judge and the present appeal has been preferred by the decree-holder against the order allowing the objection.
7. As regards the question of limitation, it is clear that the present application, was filed more than three years from the date of the execution which was filed on the 24th August 1919. It is, however, contended that on account of the objections filed by the judgment-debtor and the assignee of the decree the decree-holder was prevented from taking out fresh execution. The obstacle which in any way lay in the way of the decree-holder was, however, removed by the dismissal of the objections by the order of the Subordinate Judge passed on the 1oth February 1919. After that there was no obstacle in the way of the decree-holder to take out execution of his decree. It is contended that the appeal to the High Court prevented him from taking out execution. The filing of the appeal against the order of the Subordinate Judge by the-assignee of the decree could not in any way operate as a bar to the decree-holder taking out fresh execution.
8. It is next contended that the present application may be considered to be a continuation of the first application. This, however, cannot be considered to be a continuation of the first application it is necessary for the decree-holder to show that the scope of the present application is the same as that of the previous application. This was laid down by this Court in Kesho Prasad Singh v. Harbans Lal 53 Ind. Cas. 85 : 2 P.L.T. 22 : (1920) Pat. 109. We find, however, that the present execution is agaiust only one of the judgment-debtors named Bajrang Bahadur. The first application for execution was against two judgment-debtors, namely, Bajrang Bahadur and Sheopratap Narain. Moreover the first execution was for the realisation of the costs as well as for future interest; the present execution is for the realisation of the costs only. In the first execution the prayer was to proceed against the mortgaged properties. In the present case it has been found that the properties sought to be proceeded against are not the mortgaged properties. Under the circumstances it is clear that the present application cannot be considered to be a continuation of the first application. The present application is, therefore, barred by limitation and cannot proceed.
9. As regards the second ground, it is conceded by the learned Vakil for the appellant that the decree-holder cannot proceed against the other properties so long as the mortgaged properties are not exhausted. There is a finding that the present properties against which he now seeks to proceed are not the mortgaged properties and it has not been proved that the mortgaged properties are not available for sale.
10. Under the circumstances there are no merits in this appeal and it must be dismissed with costs.
Adami, J.
11. I agree.