- (1.) THIS is an execution First Appeal against a decision of the learned Civil Judge of Kanpur. The latter has upheld the plea of limitation raised by Sri Niwas, respondent 2, and has struck off the execution application. The only point argued before me is whether the execution application was time -barred. (2) To understand the facts which give rise to the question of law, it is necessary to state the following genealogical table of which the accuracy is not disputed viz. :
(2.) ON 5 -12 -1920 Gulabchand, acting for himself and as certificated guardian of his brother, Katanchand (then a minor), executed a mortgage deed for Rs. 10,000/ - in favour of Thakur Ram Krishna Murar Ji, hereinafter described as appellant. The appellant sued on the mortgage and obtained a decree against Gulabchand and Ratanchand on 26 -7 -1922. In 1923 Ratanchand instituted a suit with his mother, Sm. Godavari as his next friend, to challenge the decree obtained by the appellant. This suit was dismissed by the trial Court but was decreed on appeal by the High Court on 2 -4 -1928. By reason of this decree, the appellant was made to pay the costs of both Courts. On 3 -10 -1928 the appellant deposited a sum of Rs. 1129/6/ - in Court on account of the costs of the two Courts. This amount was withdrawn by Ratanchand. As he was a minor at that time, his mother, Sm. Godavari, who was also his next friend, executed a personal bond of Rs. 1129/6/ -on 22 -1 -1923 undertaking to refund this amount in case the High Courts decree was upset.
(3.) THE appellant went up in appeal to the Privy Council against the decision of this Court. This appeal was allowed on 27 -2 -1931. As a result thereof the appellant became entitled to claim the refund of the sum of Rs. 1129/ -6/ - deposited by it by way of the costs of the first two Courts together with interest thereon. On 30 -3 -1945 an execution application was presented by the appellant before the learned Civil Judge. Sri Niwas and Ratanchand were impleaded as judgment -debtors to this application. The prayer contained in this application was for attachment of sum of Rs. 2237 -10 -6 (to which amount, according to the appellant, the original sum of Rs. 1129/6/ - had swelled by accumulation, of interest) out of a sum of rupees twelve thousand which was in deposit in Court. It was alleged in the execution application that, whether this sum was owned by Ratanchand or whether it was a part of assets left by Sm. Godavari, the appellant was entitled, in either case, to appropriate it towards its decree. The suggestion was that if this sum was owned by Ratanchand the appellant would claim it by way of restitution under S. 144, Civil P.C., and if it was an asset of Sm. Godavari, it could proceed against it under S. 145, Civil P.C. It may be pointed out at this stage that Sm. Godavaris assets had devolved by reason of a will on her daughter -in -law, Sm. Lachmi Devi, and after her death on her son, Sri Niwas. ;