Authored By : Richard Harington, J. Pratt

Richard Harington and J. Pratt, JJ.

1. The respondent having obtained a mortgage decree againstthe appellant applied for execution. by sale of the mortgaged, property on the11th January 1901. The judgment-debtor obtained three postponements and thisallowed his son to file a suit claiming a one-fourth share of the mortgagedproperty and to obtain an. injunction for stay of the sale of that share. Onthe 15th May 1901 the injunction was given effect to and next day only a 3/4the share of the property was put up for sale. No one would bid and theexecution case was accordingly dismissed.

2. The suit of the judgment-debtors son was first dismissedfor default in. January 1902 and finally withdrawn on the 21st June 1904, A fewdays afterwards, i.e., on the 4th July 1904, the decree-holder renewed hisapplication for the sale of the entire property mortgaged. This application wasresisted by the judgment-debtor as regards 3/4ths of the property on the groundthat the application was time barred as being made more than 3 years after the16th May 1901, when the execution case had been dismissed. Both the LowerCourts have held that the application was under the circumstances a continuationof the previous one, which had been kept in abeyance, until the bar toexecution had been removed.

3. The judgment-debtor appeals and on his behalf it is urgedthat the application, except as regards 1/4th of the mortgaged property, isbarred, and reliance is placed upon the case of Raghunandun Pershad v. BhugooLall I.L.R.(1839) Cal. 268. We think that this contention is not sustainable.The interruption to the execution of the decree was not occasioned by any faultor laches of the decree-holder, but by the unwarranted intervention of thejudgment-debtors son in furtherance of what we cannot but regard as a deviceof the judgment-debtor himself to frustrate the rights of the decree-holder.This case is differentiated from the one already quoted not only by thatcircumstance, but by the fact that the decree-holder did make a real effort tosell the 3/4ths share of the property. We can quite understand why nobody waswilling to bid. In the first place, the property was the joint property of a familygoverned by. the Mitakshara Law the purchaser therefore would have been put tothe trouble, expense and delay of bringing a partition suit, and in the secondplace he must have apprehended that the judgment-debtor would upon the failureof his sons vexatious suit have applied to have the sale set aside on theground that he had suffered loss and that the decree-holder should have waitedtill by putting up the entire property for sale an adequate price might havebeen obtained. Clearly nobody could be expected to buy under the circumstances.Thus although the injunction operated prima facie only to postpone the sale ofa 1/4th share, it was effectual in preventing the decree-holder from sellingthe remaining share of the property and he was compelled to wait until the barwas removed before renewing the application, which had been virtually suspendedin the meantime. We think that under the circumstances of the case theapplication of the 4th July 1904 must be treated as a continuation of theformer one of the 11th January 1901, and was therefore not barred bylimitation. The appeal is accordingly dismissed with costs.

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Gurudeo Narayan Sinhavs. Amrit Narayan Sinha(23.03.1906 - CALHC)