JUDGMENT

Ganguly, J.—

1. Leave granted.

2. The subject matter of challenge in this case is the judgment and order dated 3rd January 2007 of Rajasthan High Court in Civil Second Appeal No.63/1990, whereby the High Court has dismissed the appeal.

3. The material facts of the case are that on 4.3.1953 one Smt. Lado w/o Late Shri Meghraj mortgaged two houses to the father of the present appellants for a sum of Rs.4000/-. After the death of Smt. Lado, her adopted son Malchand on 2.12.1958 filed a suit, being Suit No.156/58 before the Civil Judge Nagaur, Rajasthan inter alia claiming therein that the mortgaged deed was executed by one Chhoga Lal and Bajrang Lal by playing fraud upon his mother and thereby declaration was claimed that the mortgage was null and void and the possession of the property which was allegedly taken by Chhoga Lal and Bajrang Lal unauthorizedly may be restored to him.

4. By a judgment and order dated 23.12.1964, Civil Judge Nagaur, Rajasthan dismissed the suit inter alia holding that Malchand, the plaintiff, failed to establish his adoption by Meghraj. It was further held that Malchand is not entitled to file the suit.

5. Being aggrieved thereby, Malchand filed an appeal being Appeal No.13/1965 before the District Judge, Merta and the learned District Judge vide judgment and order dated 6.7.1967 allowed the appeal No.13/1965 holding inter alia that Malchand is the adopted son of Meghraj and, therefore, the decree for possession of the two houses described in para 3 of the plaint and mortgaged with Mrs. Lado was passed in favour of Malchand. He was directed to pay Rs.4000/- and Rs.2064/- as interest from the date of mortgage i.e. 4.3.1953 @ 9% per annum to the date of Suit i.e. 28.11.1958 to the defendants, in all Rs.6064/- and further interest at the rate of 6% per annum from the date of Suit till payment on the original Principal amount of Rs.4000/-. It was also held that Malchand should be entitled to recover possession of two mortgaged houses described in para 3 of the plaint along with the Iron safe and Title deeds given to the defendants at the time of mortgage by Smt. Lado. While deciding the appeal, the learned District Judge also disposed of the cross-objection.

6. Thereafter, on 6.10.1968, the appellant filed an application being Civil Misc. Case No.6/1968 before the District Judge, Merta praying therein to specify some time for the payment of decretal amount. To that application being Civil Misc. Case No.6/1968, Malchand filed an opposition inter alia claiming that the suit filed by him was for the possession of the property and not for the redemption of mortgaged property and, therefore, the Court cannot specify any time limit for the payment of decretal amount and the provisions of 12 years Limitation as prescribed for execution of decree shall apply to this case.

7. The learned District Judge, Merta vide an order dated 8.5.1969 dismissed the application of the appellant in Civil Misc. Application No.6/1968 inter alia holding that if the plaintiff i.e. Malchand comes with the execution of the decree, then it is up to the judgment debtors to take suitable objections in the said execution proceeding.

8. The appellant’s contention is that the period of limitation which according to him is 12 years from the date of decree expired but Malchand neither paid the decretal amount specified in the decree nor got the decree executed. Thereafter on 4.10.1982 which is about 15 years from the date of decree Kesrimal, an Attorney holder of the Malchand, sold the said property to Om Prakash, the respondent herein. According to the appellant, under the same Power of Attorney Malchand did not give any authority to Kesrimal to sell the property.

9. The subsequent purchaser Om Prakash, the respondent herein, filed an application on 12.10.1982 being Civil Misc. Case No.10/1984 under Order 34 Rule 8 of C.P.C before the Civil Judge, Merta praying for a Final Decree for the redemption of mortgage. The said claim of the r