Mahanth Achutanand Giri vs Saran Singh and Others

Varma, J.—This is an appeal by the decree-holder against the decision of the lower Appellate Court which has held that his petition in execution is time-barred.

The facts of the case may be briefly mentioned as follows : There was a mortgage decree, dated 3rd May 1926, in favour of one Bhownath Gir. Towards the decree a part payment was made on 15th June 1927. It appears that Bhownath died after that, and on 5th May 1930, one Basudeo Gir initiated execution proceedings against the judgment-debtors. This execution was allowed to be dismissed by Basudeo on 26th October 1933. In between these two dates certain incidents occurred. On 12th November 1930, i.e. soon after the execution petition was filed by Basudeo Gir, one Raghunandan Gir entered objection alleging that Basudeo Gir should not be allowed to execute the decree.

This application was dismissed by the Munsif, and when Raghunandan went in appeal before the District Judge, the Munsif''s order was upheld on 16th July 1931. Then it appears that Raghunandan came to this Court and at the time of the hearing, certain incidents occurred which seem to be the chief ground on which the present application is based.

There were two appeals to this Court in that connexion: one, Misc. Appeal No. 279 of 1931, in which Mahanth Rsaghunandan Gir was the appellant and Basudeo Gir and others were the respondents; and the other appeal was No. 103 of 1930 on behalf of Saman Singh and others against Basudeo Gir and another. Appeal No. 279 of 1931, which arose out of the application of the decree by Basudeo Gir was disposed of on 24th April 1933 in the following terms:

As between him and Basudeo Gir an agreement has been come to and it is settled between the parties that Basudeo Gir will be entitled to execute the decree, but that for a period up to 31st October 1933 he should not be allowed to take out of Court the money that may be realized in execution of the decree. Basudeo Gir agrees to it. If before 31st October 1933, Raghunandan Gir institutes a suit for declaration of his title, in that case the money will remain in deposit until the disposal of the suit. If on or before 31st October 1988 no suit is instituted by Raghunandan Gir, then the respondent Basudeo Gir will be entitled to take away the money which may be realized in execution of the decree from the Court.

After this a title suit was filed by Raghunandan Gir on 9th September 1933, which was disposed of on 20th June 1935 declaring Raghunandan Gir to be entitled to execute the decree as the heir of Bhownath. The present execution petition was filed on 14th September 1936 by Raghunandan Gir who is represented by Achutanand Gir. The judgment-debtors object to this execution on the ground that it is time-barred. The learned Munsif rejected that application, but the learned Subordinate Judge, before whom the judgment-debtors went in appeal, has allowed the objection.

Mr. Mahabir Prasad, appearing on behalf of the decree-holder, urges that on the facts of the case it should be held that the last date on which a step-in-aid of execution was taken was 26th October 1933, when Basudeo allowed the execution to be dismissed and from that date the present application is well in time.

The whole question therefore is whether the steps taken by Basudeo could enure to the benefit of Raghunandan Gir. Looking at the record it is clear that the interest of Raghunandan Gir was hostile to that of Basudeo Gir, and therefore steps taken by Basudeo cannot be taken advantage of by Raghunandan Gir. It may be that Basudeo and Raghunandan together agreed to act in a particular manner; but the rights of the judgment-debtors to raise the question of limitation could not be affected by any agreement between persons with interests hostile to each other and who were carrying on litigation amongst themselves.

For the purposes of this execution, it cannot be held after the decision of the Court, dated 20th June 1935, that Basudeo was the proper person to initiate the execution proceedings on 5th May 1930.

For this as well as for the reasons given by the learned Subordinate Judge, I would dismiss the appeal but in the circumstances of the case there will be no order as to costs. Leave to appeal under the Letters Patent is refused.