Judgement

Law. Rep. 54 Ind. App. 272 ( 1926- 1927)

Maung Sin V. Ma Tok 109

Appeal (No. 68 of 1926) from a decree of the High Court, sitting at Mandalay (July 20, 1925), reversing a decree of the District Court of Sagaing.

The appeal arose out of an application by the respondent in 1924 to execute a decree made in 1916.

The facts appear from the judgment of the Judicial Committee.

The District Judge held that the application was barred by the Indian Limitation Act, 1908.

On appeal to the High Court the decision was reversed. The learned judges (Heald and Pratt JJ.) held that having regard to the Indian Limitation Act, 1908, Sch. L, art. 182, cl. 7, the application as to the annual payments clearly was not barred. With regard to the claim for possession they held that during the years before 1923 the appellant had incurred expenses which the respondent was entitled to accept as payments under the decree. They held that having regard to Tukaram v. Babaji (( 1895) I.

L. R. 21 Bom. 122.) and other decisions those payments could be certified under Order XXI., r. 2, at any time, and that the applicant was entitled to have them certified. On that view there was no default until 1923, and the claim to execute arose then only.

1927. March 17, 18. Dunne K.C., and L. R. Dunne for the appellant. The article of the Limitation Act governing the application for possession was art.181, not art.182, and the period was three years from the date when the right to possession first accrued. No payments for the years before 1923 were proved, consequently the right accrued in 1917, and that part of the application was barred even if under art. 182, cl. 7, the application as to the two annual payments was not barred. The High Court was wrong in holding that there could be a certification under Order xxi., r. 2, at any time ; it is submitted that having regard to the Indian Limitation Act, 1908, Sch. L, art. 181, it can be only within three years of the payment. Under the last clause of the rule the applicant could not rely on the earlier payments even if made.

[Their Lordships intimated that they desired that the true construction of the decree should first be argued.]

The decree cannot be read as a series of decrees operating in each successive year. The first default in payment gave rise to the right to possession given by the decree. To construe the decree otherwise would be to read into it words which are not there.

S. Moses for the respondent was not called upon.

March 31. The judgment of their Lordships was delivered by

LORD CARSON. The respondent, who is the wife of the appellant, on September 30, 1916, obtained a decree in the District Court of Sagaing, in terms of an award which had been previously made, by which certain properties, contained in a list attached to the award and the decree, were to be left in possession of the appellant (defendant), who was to pay to the respondent (plaintiff) annually a sum of Rs.2000 in the month Kason, or in default of payment of the same (Rs.2000 annually) the said property contained in the said list would be made over to the plaintiff-respondent. It appears that after the making of the decree the parties lived together until the year 1923, when they separated.

On October 8, 1924, the respondent filed an application in the District Court of Sagaing for execution of the decree against the appellant in default of payment of two instalments of Rs.2000 each for the

Law. Rep. 54 Ind. App. 272 ( 1926- 1927)

Maung Sin V. Ma Tok 110

years 1923 and 1924 respectively, and claimed that as the judgment debtor had failed to pay according to the decree, the Court might direct the delivery of the lands in the said list by the judgment debtor to the decree-holder, the respondent.

The respondent also filed an application rendering an account of the sums alleged to have been received by her, in pursuance of the decree, up to May, 1922, and requesting that this might be noted in Court. The appellant, however, denied that he had