On the 2nd June, 1945, the present application for execution was filed, and the question which we have to decide is whether this application is in time.
The application.
The judgment debtor then made an application under Order IX, rule 9, of the Civil Procedure Code for the restoration of the proceedings under Section 36 of the Money lenders Act.
On the 19th September, 1940, the judg ment debtor made an application under Order IX, rule 13, of the Civil Procedure Code for setting aside the ex parte decree, but this application was rejected on the 7th June, 1941.
The judgment debtor thereafter preferred an appeal to the High Court at Calcutta from the decision dismissing his application under Order IX, rule 9, but the appeal was dismissed for number prosecution, on the 3rd July, 1944.
was however dismissed on the 1 st June, 1942, both on the ground that numbersufficient cause for the numberappearance of the applicant and his failure to take steps in the proceedings was shown and on the ground that numberpurpose would be served by reopening the preliminary decree after the final decree had been passed.
Thereafter, a final mortgage decree was passed in favour of the appellant, on the 22nd December.
Appeal from the High Court of Judicature at Calcut ta Civil Appeal No.
On the 21st August, 1940, a preliminary mortgage decree was passed ex parte in a suit instituted by the appellant to enforce a mortgage.
The first companyrt held that the decree was number barred, but the High Court has companye to the opposite companyclusion, and the decree holder has, after obtaining a certificate under Section 110 of the Civil Procedure Code, appealed to this Court.
On the 9th April, 1945, the appellant filed an application for executing the decree against the original judgment debtor, though he had died previously, and this application was dismissed for default on the 11th May, 1945.
LI of 1949.
On the 11th July, 1941, the judgment debtor filed an application under Section a6 of the Bengal Money lenders Act, for reopening the preliminary decree, but this applica tion was dismissed for default of appearance on the 20th December, 1941.
The facts may be briefly stated as follows.
Manohar Lal, H.K. Mitter with him , for the appellant.
March 14.
The judgment of the Court was deliv ered by FAZL ALI J. The only question to be decided in this appeal, which arises out of an execution proceeding, is whether the decree under execution is barred by limitation.
C. Mitter, for the respondent.
