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Judgment
Ross, J.—This is an appeal against an order of the Subordinate Judge of Chapra deciding that an execution was barred by limitation against judgment-debtor No. 1, the respondent.
It appears that a preliminary decree in a mortgage suit was passed on the 23rd March, 1910, and that the present application for execution was made on the 12th of May, 1922. The respondent in her objections took two grounds: first, that the execution petition was not maintainable because she had not been properly made a party to the execution case; and, secondly, that the decree was barred by limitation. It is conceded that no final decree was passed in the suit Therefore, if any decree is being executed, it must be the preliminary decree. Now a preliminary decree in a mortgage suit is not capable of execution. Whether that which is incapable of execution becomes capable of execution by reason of the objection not having been taken at an earlier stage is a matter as to which I express no opinion. But at the best, it must be the date of the preliminary decree from which time is to be calculated; and, in that case, the present petition for execution is clearly barred.
It is argued that this is a decree for the payment of money at a certain date and that u/s 48(1)(b) twelve years ought to be calculated from that date. The answer to this is first that the decree is not a decree for the payment of money, but a mortgage decree which is vitally distinct from a money decree; and, secondly, that it is not a decree for the payment of money at a certain date. The period of grace fixed by the mortgage decree is not a certain date fixed for the payment of money.
Then it is argued that the appellant could have shown that the present application for execution was in continuation of the last execution, if the question had been raised. The question was raised in the respondent''s objection; and, in any case, it was for the appellant, who was clearly out of time, to show that his application for execution was maintainable. With regard to the objection that the preliminary decree is not capable of execution, this objection failed in the case of the other judgment-debtors and succeeded in the case of the present respondent; because it was held, that she being a ward under the Court of Wards, was not properly represented in the execution proceedings and was therefore entitled to raise the point now. The learned Vakil for the appellant argued that this part of the decision was wrong, because the question was raised in the trial itself and it was held not to have been shown that the property which was the subject of the mortgage had been taken charge of by the Court of Wards. The question at issue in the original trial was as to the maintainability of the suit. The order of the Board of Revenue declaring the respondent to be incompetent to manage her own property directed that the said property be taken charge of and managed by the Court of Wards. Prima facie, therefore, the property in suit was under the Court of Wards and the respondent is certainly disqualified to manage it. It was the duty of the executing Court to see that the parties to the execution were properly before the Court; and it is in no sense going behind the decree to hold that this disqualified proprietor was not properly before the Court when the manager of the Court of Wards had not been made party to the execution.
I hold, therefore, that the execution was not maintainable against the respondent both oh the ground that he was not properly represented and on the ground that the application itself was barred by time. The appeal must be dismissed with costs.
Das, J.
I agree.