Judgment

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. The first Court held that the decree was not barred, but the High Court has come to the opposite conclusion, and the decree-holder has, after obtaining a certificate under S. 110, Civil P. C., appealed to this Court.

2. The facts may be briefly stated as follows. On 21st August 1940, a preliminary mortgage decree was passed ex parte in a suit instituted by the appellant to enforce a mortgage. On 19th September 1940, the judgment-debtor made an application under O. 9, R.13, Civil P. C, for setting aside the ex parte decree, but this application was rejected on 7th June 1941. On 11th July 1941, the judgment-debtor filed an application under S. 36, Bengal Money-lenders Act. for reopening the preliminary decree, but this application was dismissed for default of appearance on 20th December 1941. Thereafter a final mortgage decree was passed in favour of the appellant, on 22nd December. The judgment, debtor then made an application under O. 9, R. 9, Civil P. C. for the restoration of the proceedings under. S. 36, m