MOHAMMAD ISHAQ Vs. BALDEO PRASAD

JUDGEMENT

(1.) This appeal must be allowed. The facts briefly are these: A decree for sale was made so far back as in 1917. The application for execution out of which the present appeal has arisen was made on 18 October, 1926. The application that was made just before the present application was made on 2 August, 1923. 24th October 1923 was fixed for sale in execution of the previous application. On 4th October 1923, the decree-holder made an application to the Court stating that ha had given the judgment-debtor six months time to pay up, that his application might be, for the moment, struck off as infructuous, and that the judgment-debtor might be saddled with the costs of the execution. On this application being made before the Court, it passed an order to the effect that unless and until the judgment-debtor's signature was obtained on the application, the Court would direct the decree-holder to pay his own costs of the execution, The Court fixed 9th October 1923, for the appearance of the judgment-debtor. The judgment-debtor did not appear on that date to signify his agreement to the grant of time, and thereupon on the same date (9 October 1923) the Court passed the following order: An application is struck off. The decree-holder has not produced the judgment-debtor. The latter has not come forward to support decree- holder's application. The decree-holder should pay his costs.

(2.) On 18 October 1926, as I have already stated, the present application for execution was made, that is to say, more than three years after the previous application. The judgment-debtor met this application with the plea of limitation.

(3.) In the Courts below, the decree-holder sought to prove by oral evidence, that, as a matter of fact, the decree-holder and the judgment-debtor had agreed that the latter should have six months time to pay up, and that, therefore, the decree- holder was at liberty to make an application for execution at any time within three years of the expiry of the period of six months. Apparently the Courts below thought that, in the circumstance, Art. 181 would apply.