Judgement

Appeal from a judgment and decree of the High Court (May 4, 1917) reversing a decree of the Subordinate Judge of Bhagalpur (January 19, 1916).

The sole question in the appeal was whether the execution of a decree made in a civil suit and dated July 27, 1906, was barred by limitation upon the appellant applying on December 18, 1914, to execute it.

The facts appear from the judgment of their Lordships.

The decree of July 27, 1906, was in the following terms " .... it is ordered and decreed that the plaintiffs claim be decreed together with costs and interest at six per cent, per annum and the decretal amount be realized by the sale of the property belonging to Janeshvar Singh, which is in the defendants possession, and by virtue of this order the plaintiff will have no right to any portion of the property of Janeshvar Singh, which might be in possession of any one else except the defendant, and that the sum of Rs. 18,738-15-9, the amount claimed and Rs. 1286-10-0 on account of the costs of this suit be paid by the defendant to the plaintiff with interest thereon at the rate of six per cent, per annum from this date until realization."

The Subordinate Judge held that execution of the decree was not barred, since the property of Janeshvar did not come into the hands of Ekradeshvar until December, 1914.

Upon an appeal to the High Court the decision of the Subordinate Judge was reversed, it being held that execution of the decree was barred by art. 182 of Sch. I. in the Indian Limitation Act. The learned judges (Sharfuddin and Roe JJ.) were of opinion that the decree had not been incapable of execution. They said that immediately on Ekradeshvar obtaining a decree against the widow of Janeshvar—namely, on August 25, 1908, application should have been made to execute the decree of July 27, 1906 ; although upon the appeal a sale of the property would no doubt have been stayed by injunction, s. 15, sub-s. 1, of the Act would have prevented execution from becoming barred.

1920. Oct. 25, 26. De Gruyther K.C. and Abdul Majid for the appellant. Execution of the decree of July 27, 1906, was not barred by limitation. Until December, 1914, when Ekradeshvar first came into possession of the property, no successful application for execution of its terms was possible. Until then " execution was suspended by no act or default of the decree " as in Shaik Kamar-ud-din Ahmad v. Jawahur Lal. (L. R. 32 I. A. 102.) In these circumstances art. 182 of Sch. I. of the Indian Limitation Act, 1908, does not apply, and the matter is governed by art. 181, under which the decree holder had three years from December, 1914, within which to apply. If any part of art. 182 applies it is clause 7, the date when the property came into the hands of Ekradeshvar being treated as a "certain date," but in that case the same result follows.

A statute of limitations cannot be applied so as entirely to exclude the exercise of a right given by a decree. [Reference was also made to Kalyanbhai Dipchand v. Ghanashamlal Jadunathji (( 1880) I.L.R. 5 B. 29.) ; Narayan Govind Manik v. Sono Sadashiv (( 1899) I.L.R. 24 B. 345.) and Order xxi., r. 99.]

Dube for the respondents. Execution of the decree is barred by art. 182. The present application cannot be treated as one to revive the former application, first because the former application was definitely dismissed, and secondly because the process invoked is different, the former application being against the widow. The decree became capable of execution in August, 1908. In substance it was a decree against a legal representative in respect of property of a deceased person see ss. 368 and 252 of the 1882 Code (corresponding respectively to Order xxii., r. 4, and s. 52 of the 1908 Code). Upon Ekradeshvar obtaining a decree for possession against the widow in August, 1908, the Court could have ordered under the decree of 1906 a sale of his right, title, and interest in the property Durbhunga Raj v. Ramput Singh. (( 1872) 14 Moo