P.B. Mukharji, J. - (1.) This is an application for execution of a decree of the Original Side of this Court in Suit No. 330 of 1938, instituted Nursingdas Guzrati v. Lata Baijnath Prasad and others. Although the decree was dated the 16th August, 1939, it was signed by the learned Judge on the 10th September, 1943. The mode in which execution is sought is by attachment and sale of three immovable properties, two in Benaras and one in Calcutta being premises No. 6 and also known as 6A, Shib Thakur Lane. Calcutta. The claim to attach and sell Benaras properties has been withdrawn without prejudice to the decree-holder's right to proceed against such Benaras properties by transmission of this decree to Benaras Courts within whose jurisdiction such properties are situate. The present application for execution, therefore, is now concerned only with the claim to attach and sell 6 or 6A, Shib Thakur Lane, Calcutta. The amount of the decree is for Rs. 52,533-10-0 together with interest thereon at 6 per cent, per annum. That is the decree which is sought to be executed. It is said in the Tabular Statement that all (the defendants-judgment-debtors are interested in the said property to the extent of 16 annas share therein. Being a decree more than one year old, usual notice under Order 21, Rule 22 (1) (a) and (b) of the Civil Procedure Code was issued by the Master on the 4th August, 1953. The application is made on a Tabular Statement. There are about 38 judgment-debtors. The only point taken in defence by the judgment-debtors is that the decree is barred by limitation under Article 183 of the Limitation Act. To appreciate the point of limitation, certain facts and dates should be noticed.
(2.) The facts, briefly, are as follows: The plaintiff advanced altogether a sum of Rs. 33.600 with interest at 9 per cent to the defendants between April, 1932, and December, 1933. The plaintiff filed this suit on the 7th February, 1938, for the recovery of the sum of Rs. 49,537-10-0 being the amount then due on the loans with interest against the defendants, who were about 38 in number as members and managing members of a Hindu joint family. On the 3rd June, 1939, the minor members of the family filed a suit in the Civil Judge's Court at Allahabad against the plaintiff and other Calcutta creditors who were likely to obtain decrees for inter alia an injunction, restraining them from executing their decrees. In that minor's suit an injunction was granted on the 3rd June, 1939, against the plaintiff from executing his decree and from proceeding against the properties in which the minors were interested. The terms of this injunction will be material later on, and I will at that stage set out the exact terms of this injunction. Now while that minor's suit was pending with an injunction granted against the Calcutta plaintiff, this decree was passed in this suit by Lort Williams, J., on the 16th August, 1939. On the 14th September, 1939, the plaintiff gave requisition to draw up the decree through his solicitors. This draft decree was received on the 24th November. 1939, by the plaintiff's solicitor for the purpose of being approved. On the 28th November, 1939, the decree was settled and passed. But an application was made by the plaintiff to speak to the minutes retarding the rate of interest, and the engrossing of the decree was stayed for one week only. The plaintiff, however, did not ultimately speak to the minutes; but it is necessary to record here that the engrossing of the decree was not stayed beyond a week. On the 4th March, 1940, the temporary injunction which the minors had got from the Civil Court at Allahabad was made final. Again the terms of the order of injunction will be material, and I will discuss them at the proper stage. On the 27th April, 1943, some of the creditors, but not the present decree-holder, appealed from that order of injunction to the Allahabad High Court and got the injunction as against them vacated. The injunction against the present decree-holder however continued. On the 7th September, 1943, the decree-holder's solicitor wrote to the Registrar for completing his decree. Within three days thereafter on the 10th September, 1943, the decree was re-settled, passed and signed by S. R. Das, J. On the 10th September, 1943, requisition was made for a certified copy of the decree and on the very following day, i.e.. the 11th September, 1943, the decree was filed and a certified copy of the decree received by the decree-holder. Thereafter the minor's suit in Allahabad was dismissed on the 18th January, 1944. The dismissal of the minor's suit in Allahabad, therefore, lifted the injunction against the present decree-holder. It will be necessary to refer to another action. The first defendant Baijnath Prosad had filed a suit, being Miscellaneous Case No. 25 of 1935. before the Special Judge, First Grade, Allahabad under the U. P. Encumbered States Act where applications were made for injunction restraining the present decree-holder and other creditors from executing their Calcutta decrees. These applications, however, were dismissed on the 21st November. 1946. Appeals were preferred against such dismissals in the Allahabad High Court, and in these appeals, applications were made for injunction restraining the plaintiff from executing the decree, and a temporary injunction was passed on the 13th February, 1947. That temporary injunction was confirmed so far as the present decree-holder was concerned by the Allahabad High Court on the 26th April, 1948, until the disposal of the appeals. The appeals were ultimately dismissed by the Allahabad High Court on the 17th February, 1950. The injunction, therefore, that was operating against the decree-holder in Baijnath's suit from 13th February, 1947 was lifted by the 17th February, 1950, with the dismissal of the appeals. Then an application was made for leave to appeal to the Supreme Court before the Allahabad High Court on the 1st May, 1950. and an injunction restraining the Calcutta decree-holders, including the plaintiff, from executing their decrees was sought, but no injunction was granted.
(3.) The present proceeding in execution began on the 4th August, 1953, when the decree-holder filed his Tabular statement in execution of the decree and an order was made by G. K. Mitter, J., on the 24th January, 1954, for attachment of the interests of the respondents Nos. 2 to 27 in Shib Thakur Lane property mentioned in the Tabular Statement.;