Judgment

Chandrasekhara Aiyar, J. :- This appeal, preferred from the decree of the Bombay High Court in Appeal No. 281 of 1947, raises the question whether an execution application seeking to execute a final decree, passed by the 1st Class Subordinate Judge s Court, at Poona, on 6-12-1932, for & sum of Rs. 1,24,215 and odd, is barred by limitation. The decree was made in a suit for dissolution of a partnership and the taking of accounts.

2. The execution application was filed on 4-10-1946, and the amount stated to be due under the decree on that date was Rs. 2,30,986 and odd. The previous Exn. Appln. No. 946 of 1940 filed in the Court of the 1st Class Sub-Judge, Sholapur, to which the decree had been transferred for execution, was made on 24-6-1940. It was dismissed on 9-9-1940 for non-prosecution.

3. It would thus be seen that the present application was filed after the lapse of 12 years from the date of the final decree and three years from the date of the final order on the previous application. To surmount the bar of limitation, the decree-holder, who is the appellant before us, raised four contentions : firstly, that the final decree, which provided that the plaintiff should pay the deficit court-fees on 18 the decretal amount before the execution of the decree, was a conditional decree, and that time began to run from the date when the condition was fulfilled on 5-19-1935, by payment; secondly, that the period occupied by the insolvency proceedings from 10-8-1937 to 14-12-1942, initiated by the decree-holder to get the first judgment-debtor Walchand Ramchand Kothari (with whom alone we are now concerned) adjudged an insolvent, should be excluded under S.14 (9), Limitation Act; thirdly, that the period occupied by one Tendulkar, who was the creditor of the present decree-holder, in seeking to execute this decree, should be deducted ; and lastly, that as the judgment-debtor prevented execution of the decree against the Prabhat newspaper by suppressing his ownership of the same, a fresh starting point of limitation springs up in the decree-holder s favour from the date of the discovery of the fraud.

4. The Subordinate Judge field that the execution application was not barred, agreeing with every one of these contentions. On appeal to the High Court, Chagla C. J., and Dixit J. reversed this decision, holding that it was not a conditional decree, that the steps taken by Tendulkar to execute this decree were of no avail, and that the insolvency proceedings were for a different relief altogether, so that S.14 (2), Limitation Act, could not be invoked. They concurred with the finding of the Subordinate Judge that the judgment-debtor prevented the execution of the decree within twelve years by fraudulent concealment of his ownership of the Prabhat newspaper and that the twelve years bar of limitation did not apply; but they held that the application was barred under Art. 189, Limitation Act, as more than three years had run from 9-9-1940, the date of the dismissal of the previous execution application, before the present application was filed on 4-10-1946.

5. Points 1 to 3 above-mentioned are of no avail to the appellant. The decree was not a conditional one in the sense that some extraneous event was to happen on the fulfilment of which alone it could be executed. The payment of court-fees on the amount found due was entirely in the power of the decree-holder and there was nothing to prevent him from paying it then and there; it was a decree capable of execution from the very date it was passed. There could be no exclusion of the time occupied by the insolvency proceedings which clearly was not for the purpose of obtaining the same relief. The relief sought in insolvency is obviously different from the relief sought in the execution application. In the former, an adjudication of the debtor as insolvent is sought as preliminary to the vesting of all his estate and the administration of it by the Official Receiver or the Offic