( 1 ) THIS is an appeal by one of the two dclendants against the final decree for sale passed by the Civil Judge, Class I, Raipur, in civil suit No. G-A of 1940.

( 2 ) THE appellant Gyaniram for self and as guardian of his son Babulal, respondent no. 2 executed a simple mortgage bond, dated 2-1-1936, for Rs. 6,999 in favour of Chhotelal, since deceased, father of respondent No. 1, Gangabai. Interest agreed was 11 annas p. c. p. m. with yearly rests. The mortgage debt was said to have been taken for meeting the marriage expenses of Babulal who was then a minor. Chhotelal instituted the suit, out of which this appeal arises against gyaniram and Babulal for recovery of Rs. 9,795-5-0 inclusive of interest. The suit was contested by Babulal who denied execution of the mortgage bond and legal necessity for the debt, A preliminary decree for sale for the full amount, with costs and future interest, was, however, passed against both the defendants on 29-111941, and the amount due, which was found to be Rs. 11,547-12-0 was made payable on or before 29-5-1942 with interest at 6 p. c. p. a. from the date of suit, namely, 15-2-1940, till 29-5-42 and thereafter at 4 p. c. p. a. till realisation.

( 3 ) BABULAL preferred an appeal (First Appeal No. 28 of 1942) to this Court on 14-31942, against the preliminary decree. Chhotelal died on 22-7-43 and no application was made for substitution of his legal representatives within the period of limitation. On 8-4-1944, however, Babulal filed two applications, one for setting aside the abatement of the appeal and the other for substituting Gangabai in place of Chhotelal. The application for setting aside the abatement of the appeal was dismissed by this Court on 11-10-1944, and although no express order was passed on the other application, it obviously also stood dismissed along with the application for setting aside the abatement.

( 4 ) BABULAL also filed an application on 1-9-1944 for substituting certain persons as the legal representatives on the strength of an alleged will of Chhotelal, which appointed them as executors of his property. Another application was also filed on 15-12-1944 for review of the order passed on 11-10-1944, Those applications were heard and dismissed on 26-10-1945. Still another application of Babulal, dated 3-1-1945, for substituting Gangabai in her capacity as an executor was also dismissed on 4-7-1945.

( 5 ) THEREAFTER Gangabai filed an application on 5-2-1947 for dismissal of the appeal on the ground of abatement. This application came up for hearing before Hemeon and Sen, JJ. , who, on 24-3-1947, made the following order:

"mr. T. B. Pendharkar, counsel for the appellant. Mr. M. Adhikari, counsel for the respondent. Heard application No. 696 dated 5-2-1947. The appeal is dismissed with costs as abated. "

Thus terminated the appeal of Babulal.

( 6 ) ON 21-3-1946, Gangabai filed an application before the lower Court for substituting her in place of Chhotelal and for passing a final decree for sale. The application was opposed on two grounds namely (i) that it was barred by limitation, and (ii) that the applicant was not the legal representative of Chhotc-lal as he had appointed other persons as executors by his will. The lower Court held on the first point that the application was within time as limitation began to run under Article 181, First Schedule of the Indian Limitation Act, 1908, from 24-31947 when Babulal's appeal was finally disposed of. On the second point, it held that both as an heir and also as legatee of a life estate under the will, she was the legal representative of Chhotelal. By an order dated 11-3-1949, therefore, the lower Court directed the application to proceed.

( 7 ) AS against the above order, Gyaniram preferred an appeal (Miscellaneous First appeal No. 86 of 1949) before this Court. In the meantime the lower Court took up the proceedings pending before it, and on 8-4-1949 made the decree absolute. Thereafter, Gyaniram withdrew his miscellaneous a

Click Here to Read the rest of this document