The satisfaction of a decree for foreclosure becomes unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.

Judgement

P. V. B. RAO, J. :- Civil Revision No. 260 of 1949 and First Appeal No. 44 of 1951, involve common questions of fact and law and are heard together. They are disposed of by this common judgment.

2. Civil Revision No. 260 of 1949 arises out of an order passed by the learned Subordinate Judge of Cuttak in Misc. Case No. 1 of 1949 on an application filed by the petitioners, who will be referred to hereafter as mortgagees, under Ss. 151, 152 and 153, Civil P.C. for amendment of the decree and Judgment passed in a suit for foreclosure.

3. First Appeal No. 44/51 is against the decree and judgment of the Additional Subordinate Judge of Cuttack, in Original Suit No. 9/49. The suit was filed by the plaintiffs (mortgagees) for a declaration of their title to the properties described in Sch B and for delivery of possession of the same, or in the alternative for a claim of a sum of Rs. 5922-12-0 being the value of the suit property from defendant 1.

The petitioners in Misc. Case No. 1 of 1949 and the plaintiffs in Original Suit No. 9 of 1949 are the same. Defendant 40 in the original suit is the mother of these plaintiffs who are the sons of one Bhuyan Bhaskar Chandra Mohapatra, who died in 1938, and is the original mortgagee. Defendants 4 to 39 are the co-sharers of defendant 1 who are pro forma defendants.

Defendant 1 borrowed Rs. 30,000/- from the plaintiffs father on 13-4-32 on a registered mortgage by conditional sale, the properties mortgaged being situated in the districts of Cuttack and Puri and described in Sch A. The conditions of the mortgage are that if defendant 1 fails to pay the aforesaid amount of Rs. 30,000/- within one year, the mortgagee will be the owner of the said property.

The defendant defaulted to pay the amount within the period fixed and the plaintiffs father filed a suit for foreclosure of the mortgage in Original Suit No. 38 of 1935, in the Court of the Subordinate Judge of Cuttack against defendant 1 and two others, one Babu Nalinikanta Mookherjee, Common Manager, Kothdesh Estate and Babu Jyotish Chandra Chakravarty, Pleader Receiver of Bhingarpur Estate. The preliminary decree for foreclosure was passed on 30-5-1936 and it was made final on 13-2-37.

In execution of the said decree in Ex. Case No. 64/37, the mortgagee got possession of all the properties under decree except lot No. 6 of the mortgaged property in Sch. A. Even before the execution of the mortgage by defendant 1 there were two suits for partition, O. S. 69 of 1924 and O. S. 144 of 1927, pending in the Courts of the Subordinate Judge of Cuttack, between defendant 1 and his cosharers pro forma defendants 4 to 39.

The final decree in the said partition suit was passed on 22-12-36. Lot No. 6 of plaint A schedule fell to the shares of the pro forma defendants 4 to 19 and 21 to 39 and defendant 1 under the final decree in the partition suit got the property described in Sch. B of the plaint in view of his undivided share in lot No. 6 of the mortgaged property. Exhibit 3 dated 24-8-38 is an extract from the order-sheet in Act VIII Case No. 142 of 1938 in which Srimati Suniti Kumari Devi as guardian of the minor sons of Bhuyan Bhaskar Chandra Mohapatra, the mortgagee, was the applicant.

According to this exhibit, she was appointee guardian of the person and property of the minors, and it was also stated therein that the minors would attain their majority on 25-1-42 and 31-7-44. The father of the plaintiffs during his lifetime applied for delivery of possession under the foreclosure decree and failed to get possession, and it is alleged in the plaint that he came to know that the mortgaged property in lot No. 6 was allotted to the other cosharers of defendant 1.

Defendants 2 and 3 are subsequent alienees from defendant 1 mortgagor of the properties allotted to him in the partition suit in lieu of item No. 6 of the mortgage by registered sale deeds, Exts. C and D dated 24-7-42 and 1-2-37 respectively. Defendants 2 and 3 contended that they were bona fide