Civil Appeal No 2494 of 1969
From the Judgment and Decree dated 24 1 1969 of the Calcutta High Court in Appeal from Original Order No 11166
D N Mukherjee and N R Chaudhary for the Appellants
P K Chatterjee and Sukumar Ghosh for the Respondent
The Judgment of the Court was delivered by UNTWALIA J
This is an appeal by certificate filed by the judgment debtors from the decision of the Calcutta High Court given in appeal from that of a learned single Judge of that Court
The facts of the case clearly demonstrate the fighting attitude of the judgment debtors to gain time for the satisfaction of the decree
On August 15 1925 one Indera Chand Kejriwal instituted on the original side of the Calcutta High Court a suit on the basis of a mortgage against Ram Chander Saragogi Sewbux Saraogi and Tejpal Saraogi for recovery of Rs 38000 as principal and Rs 60828 annas as interest
By an equitable mortgage the property mortgaged consisted of two houses 1 No 126 Harrison Road and 2 No 132 Syed Salley Lane in the town of Calcutta
On November 26 1926 a consent decree was passed for a sum of Rs 41000 together with interest thereon  634 per annum
On failure of the judgment debtors to pay the amount the mortgaged properties were to be sold
On 3rd of January 1929 it was ordered and 158 decreed that the mortgaged property be sold
On 16th April 1934 Indera Chand Kejriwal by a deed of assignment assigned his interest in the decree to Mahadeo Prasad Tibrewalla the respondent in this appeal
On the application of the assignee decree holder an order was made on the 8th May 1934 substituting his name in place of the original decree holder and recording some terms of settlement between him and the judgment debtors
The amount with interest quantified on that date was Rs 6002312 annas which was to carry an interest of 634 per annum
Subsequently on an application of the decree holder one Anandilal Poddar was appointed on the 14th June 1938 a receiver of rents and profits of the mortgaged properties
A sum of Rs 10000 was paid to the decree holder on the 7th September 1939 towards part satisfaction of the decree
On the death of Ram Chander Saraogi one of the judgment debtors by order dated the 7th August 1945 SmtParbati Devi Ananta Kumar Saraogi and Suraj Kumar Saraogi his heirs and legal representatives were substituted
They are appellant Nos 1 to 3 in this appeal
No further payment was made to the decree holder and eventually a consent order was passed by the Court on the 17th June 1953 on the basis of the terms of settlement arrived at between the parties which were incorporated in the letter written by the Solicitor of the judgment debtors to the Solicitor of the decree holder
The terms of settlement are quoted in full in the appellate judgment of the High Court
The salient terms of the settlement may be stated as follows 1 That the total dues on the date came to Rs 110000 
2 That Shri Anandilal Poddar the receiver was to pay Rs 35000 
3 That a sum of Rs 40000 was to be paid by conveying premises No 132 Syed Salley Lane to the decree holder and 4 That a sum of Rs 35000 was to be paid in cash by raising money by execution of an another mortgage of premises No 126 Harrison Road
Anandilal Poddar paid the sum of Rs 35000 
But nothing further was done by the judgment debtors pursuant to the settlement arrived at on the 17th June 1953
Sewbux Saraogi one of the judgment debtors died leaving a Will in which the universal legatee was his daughter SmtKapurbai and the sole executor appointed therein was Motilal Jhunjhunwalla husband of Kapurbai
On the 7th 159 June 1965 the respondent affirmed a tabular statement for execution of the decree
A learned single judge of the Calcutta High Court dismissed that application mainly on the grounds 1 that the terms of bargain between the parties recorded on the 17th June 1953 were entirely different from the original decree and had the effect of superseding it the former decree therefore was not executable 2 that the factum of the death of Sewbux Saraogi was not recorded and his heirs were not substituted in the tabular statement
In passing the learned single Judge also expressed the view that the execution was barred under section 48 of the Code of Civil Procedure
On appeal by the decree holder the Appellate Bench has reversed the decision of the learned single Judge on all the points
Hence this appeal by the judgment debtors
We shall first dispose of the point of limitation
From the facts stated above it is abundantly clear that there was no bar of limitation in the present execution instituted in the year 1965
At no point of time the mortgage decree had been fully satisfied
All through steps were being taken and it was not a case where the execution was barred either under section 48 of the Code of Civil Procedure or Article 183 of the Limitation Act 1908
It was conceded and rightly so by learned counsel for the appellants that the execution was not barred under Article 136 of the 
But the submission was that it was already barred when that Act came into force on the 1st of January 1964 under Article 183 of the old Act
We have no difficulty in rejecting the argument of limitation
All through steps had been taken by the decree holder
The case was not lying dormant at any point of time for a period of more than 12 years
When in the year 1929 there was an order for sale of the mortgaged properties it appears some payments were made and finally accounts were settled in the year 1934
Thereafter the mode of execution proceeded by appointment of a receiver
A sum of Rs 10000 was paid in the year 1939
In the year 1945 steps were taken for substitution of the heirs and legal representatives of Ram Chander Saraogi one of the deceased judgment debtors
Parbati Devi appellant No 1 was allowed to take some steps for the satisfaction of the decree
But nothing was done
Eventually a settlement was again arrived at on the 17th June 1953 for satisfaction of the decree but on the judgment debtors  failure to fulfil the settlement the present proceedings were started by filing the tabular statement on the 7th of June 1965 well within 12 years of the 17th June 1953
The point of limitation raised on behalf of the appellants therefore must be rejected
160 A statement had been made in the tabular statement that Sewbux Saraogi one of the judgment debtors was dead
Kapurbai his daughter along with others were sought to be substituted in his place
Later on it transpired that she was a universal legatee under a will executed by Sewbux Saraogi
She was therefore undoubtedly a legal representative competent to represent the estate of Sewbux Saraogi
Even in absence of the substitution of Motilal Jhunjhunwalla the sole executor of the will the execution was not defective
Reference in this connection may be made to the decision of this Court in the case of The Andhra Bank Ltd vs R Srinivasan and Others 1 decision relied upon by the Appellate Bench
Coming to the third and the last point it may be mentioned that the settlement arrived at on the 17th June 1953 was not an altogether renovation of the old decree
The amount due was quantified and the mode of satisfaction was prescribed giving liberty to the judgment debtors to satisfy the decree by conveying one of the two mortgaged houses and by paying a sum of Rs 35000 in cash by raising the money by mortgage of the other house
The judgment debtors did neither
The terms of settlement were silent as to what was to happen on the failure of the judgment debtors to satisfy the decree in the manner agreed upon
In such a situation it was quite legitimate to assume that the parties intended that the decree holders would be entitled to realise the dues by execution of the original mortgage decree
Reading the terms of settlement in the context of the letter of the Solicitor of the Judgment debtors it is plain to us that the order dated 17th June 1953 had not the effect of passing a new decree in substitution of the old one
It had merely the effect of giving facility to the judgment debtors for the satisfaction of the decretal dues
On their failure to do so they were liable to be proceeded with in execution of the original mortgage decree
For the reasons stated above we hold that there is no substance in any of the points arising in this appeal
We accordingly dismiss this appeal with costs
NVK Appeal dismissed


Summary:
In a suit for recovery of money on the basis of a mortgage a consent decree was passed
When the judgment debtors failed to pay the amount the mortgaged properties were ordered to be sold
The decree holder assigned his interest under the decree in favour of the respondent and this was approved by the Court
A part payment was made to the decree holder
On the death of one of the judgment debtors his heirs and legal representatives appellants in this appeal were substituted
On June 17 1953 a consent order was passed by the Court on the basis of the terms of settlement arrived at between the parties
According to the will left by one of the judgment debtors his daughter was the universal legatee and his son in law was the sole executor
When the decree holder sought execution of the decree a Single Judge of the High Court dismissed the application on the grounds 1 that the terms of settlement between the parties recorded on 17th June 1953 were entirely different from the original decree and had the effect of superseding it 2 that the fact of the death of one of the judgment debtors was not recorded and his heirs were not substituted and 3 execution was barred under section 48 of the Code of Civil Procedure
On appal a Division Bench of the High Court reversed the order of the Single Judge
Dismissing the appeal  HELD 1
There was no bar of limitation in the execution instituted in 1965
At no point of time the mortgage decree had been fully satisfied
It is not a case in which the execution was barred either under section 48 CPC or article 183 of the Limitation Act 1908
Execution was not barred under article 136 of the 
159D 2
There is no force in the contention that it was already barred when the 1963 Act came into force
All through steps had been taken by the decree holder to enforce the decree
When the order of sale of the mortgaged properties was passed in 1929 some payments were made and finally accounts were settled in 1934
Thereafter the mode of execution proceeded by appointment of a receiver
Some money was paid in 1939
In 1945 the heirs and legal representatives of one of the deceased judgment debtors were substituted
Appellant no 1 was allowed to take steps for the satisfaction of the decree but nothing was done
A settlement was again arrived at in 1953 for satisfaction of the decree but on the judgment debtor s failure to comply with the terms of the settlement the present proceedings were started well within 12 years
159E H 157 3
The daughter of the second judgment debtor was competent to represent the estate of her father
Even if her husband who was the sole executor of the will was not substituted execution was not defective
160B The Andhra Bank Ltd vs R Srinivasan and Others 1962 3 SCR referred to 4
The settlement of 17th June 1953 was not an altogether renovation of the old decree
All that was done was that the amount due was quantified and the mode of satisfaction was prescribed giving opportunity to the judgement debtors to satisfy the decree by conveying one of the two mortgaged houses
The judgment debtors did nothing
Though the terms of settlement were silent with regard to what was to happen on failure to satisfy the decree it is legitimate to assume that the parties intended that the decree holders would be entitled to realise the dues by execution of the original mortgage decree
The order of 17th June 1953 passed by the Court had not the effect of passing a new decree in substitution of the old one
It had merely the effect of giving facility to the judgment debtors for the satisfaction of the decretal dues
On their failure to do so they were liable to be proceeded with in execution of the original mortgage decree
160C F