MOHAMMAD TAQI KHAN Vs. RAJA RAM

JUDGEMENT

(1.) The following two questions have been referred to this Full Bench for answers: (1) Whether an order passed in the following terms without notice to the parties, namely, execution struck off for partial satisfaction of the decree; costs on the judgment-debtors , is to be construed only as a provisional order suspending the application for execution, or as a final order passed on an application made as referred to in Clause (5), Art. 182, Lim. Act; and (2) Whether an acknowledgment of liability by some only of the heirs of a mortgagor against whom a decree for sale on the basis of a mortgage has been passed operates to save limitation as against the other heirs of the mortgagor, as well as against the makers of the acknowledgement.

(2.) In this case a mortgage decree for sale was put in execution in 1928 against several judgment-debtors who were the heirs of the original mortgagor. The property was non-ancestral, but was assessed to Government revenue; and so the executing Court directed the Collector to sell the property. The Collector, as the sale officer, had fixed 20 June 1928 for sale, when Rs. 300 appear to have been paid by the judgment-debtors to the decree-holders, who allowed two months further time to the judgment-debtors for the payment of the balance. The sale officer accordingly postponed the sale fixing 20 August 1928 for the sale of the property, and sent a report to the execution Court to that effect. No notices were issued by the execution Court to the parties concerned, but on receipt of the report of the sale officer the Court, on 6 July 1928, passed the following order: The case has come on for hearing to-day; the decree-holders having received Rs. 300 have granted two months time.... Execution case struck off far partial satisfaction of the decree. Costs on judgment- debtors.

(3.) The parties had apparently no knowledge of that order at that time; indeed, not perhaps till 11 August when part of the mortgaged property was privately sold by the judgment-debtors to the decree-holders leaving in their hands a sum of money for part satisfaction of the decree. On 20 August 1928 the parties appeared before the sale officer, and it is an admitted fact that no sale took place on that date. It is not necessary at this stage to consider whether the parties agreed to a further adjournment or not. The fact however, is that no further report was sent to the execution Court by the sale officer that he had adjourned the sale for a further period, and no sale in fact took place. The present application for execution was filed on 25 August 1931, shortly after the expiry of three years from the date of the order of the execution Court dated 6 July 1928. On behalf of the decree-holders it was contended that the aforesaid order was not a final order and the execution case still remained pending in the Court of the Subordinate Judge and can be revived, and that accordingly limitation does not come in their way. On behalf of the judgment-debtors it was contended that this order was a final order passed by the execution Court and the present application must be treated as a fresh application for execution and was therefore barred by time. The second question raised in the case related to an acknowledgment of liability made by some of the heirs of the original mortgagor and not the others. The decree-holders contention is that the acknowledgment by some of the judgment-debtors saves limitation against all, whereas the judgment-debtors who had not made the acknowledgment contend that the acknowledgment is of no avail as against them.