Decree for costs to be taxed by Taxing Officer not enforceable until amount of costs ascertained upon taxation. Limitation runs from date of taxation, not from date of decree.

( 1 ) THIS is an application for execution of a decree for costs by and on behalf of the defendants Nos. 1, 2 and 3 against the defendant No. 6. The relevant portion of the said decree dated 1st May, 1959 passed by A. N. Ray, J. as his Lordship then was, appear from certified copy annexed to the Tabular Statement affirmed on May 2, 1972 as follows: -"and it is further ordered and decreed that the plaintiffs and the defendants Sailesh Chowdhury and Shyamapada Chowdhury do pay to the defendants Saha Chowdhury and Co. Private Ltd. Prodyot Kumar Chowdhury and Sm. Satadal Basini Chwdhury their costs of this suit including the reserved costs and costs of Commission (to be taxed by the Taxing Officer of this Court and in taxing such costs the said Taxing Officer do tax the costs of commission as of hearing including fees to two advocates) this Court doth certify that this is a fit case for engaging two advocates. "

( 2 ) MR. P. K. Roy, Counsel appearing in support of this application contended that the plaintiffs preferred an appeal from the said decree dated 1st May, 1959. the Appeal Court consisting of his Lordships, R. S. Bachawat as he then was and his Lordship C. N. Laik dismissed the appeal on June 7, 1962, affirmed the decree of the trial Court dated 1st May, 1959 except the order for costs made therein against the plaintiffs which was set aside.

( 3 ) THE decree for costs to be taxed by the Taxing officer of this Court against the defendants Nos. 5 and 6 remained unaffected and the instant application is for execution of the said decree against the defendant No. 6 after the costs have been taxes by the Taxing Officer of this Court as between party and party and ascertained to be the sum of Rs. 18,538/- and 56 paise and an allocatur dated 14th August, 1963 was issued, a copy whereof has been annexed to the said Tabular Statement.

( 4 ) THE applicants are the defendant No. 1, Saha Chowdhury and Co. Pvt. Ltd. , the defendant No. 2 Prodyot Kumar Chowdhury and Abani Kumar Saha, the sole executor to the estate of defendant No. 3, Sm. Satadal Basini Chowdhury, since deceased. The said defendant No. 2 Prodyot Kumar Chowdhury has filed an affidavit for self and on behalf of the other decree holders affirmed on May 2, 1972 in support of the Tabular Statement also affirmed by him on the same day.

( 5 ) MR. Pijush Kumar Dutt, the learned Counsel appearing on behalf of the judgment-debtor, defendant No. 6 opposed the application on the following grounds: -

( 6 ) FIRSTLY, the defendants Nos. 3, 4, 5 and 7 have since died and the deceased defendants are not represented in this application. No notice has been served upon the heirs and legal representatives of the defendant No. 5, who was also liable to pay costs under the said decree.

( 7 ) REGARDING the above objection, it is settled that on death after the decree the representation of the deceased defendants is not imperative unless the decree is sought to be executed against their estate. Further, the decree herein is not against any of the defendants Nos. 3, 4, 7 and is not sought to be executed against the estate of the defendant No. 5. In Khatu Bai v. Khatija bai, AIR 1973 And Pra 35 it is held that, where the decree for costs is joint and several the decree holder can execute it against any or all of the judgment debtors and it is not necessary to implead all the judgment-debtors as respondents to the execution petition.

( 8 ) THERE is therefore no merit in the first objection raised by the learned Counsel opposing this application.

( 9 ) SECONDLY, the maintainability of the execution application is attacked on the ground that the decree sought to be executed was passed on 1st May, 1959. Under the new Limitation Act, 1963, the time for obtaining copy of the decree cannot be excluded for computing limitation. The decree sought to be executed on 2nd May, 1972 is clearly barred by the law of limitation being made after 12 years from the said date of the decree.

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