Full Judgment
Harington and Pratt, JJ.
1. The respondent having obtained a mortgage decree against the appellant applied for execution. by sale of the mortgaged, property on the 11th January 1901. The judgment-debtor obtained three postponements and this allowed his son to file a suit claiming a one-fourth share of the mortgaged property and to obtain an. injunction for stay of the sale of that share. On the 15th May 1901 the injunction was given effect to and next day only a 3/4 ths share of the property was put up for sale. No one would bid and the execution case was accordingly dismissed.
2. The suit of the judgment-debtor's son was first dismissed for default in. January 1902 and finally withdrawn on the 21st June 1904, A few days afterwards, i.e., on the 4th July 1904, the decree-holder renewed his application for the sale of the entire property mortgaged. This application was resisted by the judgment-debtor as regards 3/4ths of the property on the ground that the application was time barred as being made more than 3 years after the 16th May 1901, when the execution case had been dismissed. Both the Lower Courts have held that the application was under the circumstances a continuation of the previous one, which had been kept in abeyance, until the bar to execution had been removed.
3. The judgment-debtor appeals and on his behalf it is urged that the application, except as regards 1/4th of the mortgaged property, is barred, and reliance is placed upon the case of Raghunandun Pershad v. Bhugoo Lall (1839) I.L.R. 17. Calc. 268. We think that this contention is not sustainable. The interruption to the execution of the decree was not occasioned by any fault or laches of the decree-holder, but by the unwarranted intervention of the judgment-debtor's son in furtherance of what we cannot but regard as a device of the judgment-debtor himself to frustrate the rights of the decree-holder. This case is differentiated from the one already quoted not only by that circumstance, but by the fact that the decree-holder did make a real effort to sell the 3/4ths share of the property. We can quite understand why nobody was willing to bid. In the first place, the property was the joint property of a family governed by. the Mitakshara Law the purchaser therefore would have been put to the trouble, expense and delay of bringing a partition suit, and in the second place he must have apprehended that the judgment-debtor would upon the failure of his son's vexatious suit have applied to have the sale set aside on the ground that he had suffered loss and that the decree-holder should have waited till by putting up the entire property for sale an adequate price might have been obtained. Clearly nobody could be expected to buy under the circumstances. Thus although the injunction operated prima facie only to postpone the sale of a 1/4th share, it was effectual in preventing the decree-holder from selling the remaining share of the property and he was compelled to wait until the bar was removed before renewing the application, which had been virtually suspended in the meantime. We think that under the circumstances of the case the application of the 4th July 1904 must be treated as a continuation of the former one of the 11th January 1901, and was therefore not barred by limitation. The appeal is accordingly dismissed with costs.