Execution against defendant who was made liable.

The only question involved in this appeal is whether the application for execution of the decree in O.S. No. 92 of 1949, on the file of the Sub-Court, Tuticorin, is barred by limitation. The suit was laid against the respondent and his wife Arunachalathammal as the 2nd defendant for recovery of certain monies due on dealings, which the appellant had with the former. Arunachalathammal was impleaded as a guarantor. On 24th November, 1951, the Subordinate Judge, Tuticorin, passed a decree for a sum of Rs. 34,479-6-2 and costs, against the appellant dismissing the suit against Arunachalathammal with costs. As no statement of costs was filed on behalf of Arunachalathammal, those costs were not taxed. Nevertheless, the appellant filed A.S. No. 940 of 1952, in this Court, challenging the validity of the decree in so far as it directed costs to be paid by the appellant to Arunachalathammal. That appeal was dismissed on 14th November, 1956. In the meanwhile, the appellant had applied on 31st August, 1954, for execution of the decree against the respondent. That application was dismissed on 8th February, 1955. On 4th March, 1958, the appellant filed an execution application for realisation of the amount due under the decree by arrest of the respondent. The learned Subordinate Judge dismissed the application as barred by limitation. Hence this appeal.

As the execution petition, out of which this appeal arises, was filed more than three years after the date of the final order in E.P. No. 64 of 1954, the decree-holder could not invoke the provisions of Article 182 (5) in his favour.

Before the learned Subordinate Judge it was contended that the appropriate Article to apply in the present case would be Article 182 (2) of the Limitation Act, and, as the appeal against the decree for costs in favour of Arunachalathammal was dismissed only on 14th November, 1956, the present application was claimed to be in time. This contention was rejected by the learned Subordinate Judge for the reason that the respondent, who was the first defendant in the suit, was not concerned in the appeal, the appeal being restricted to the decree in favour of the 2nd defendant alone. Support was sought for this view in the decision of a Full Bench reported in Sivaramachari v. Anjaneya Chetty1, where it was held that the term “appeal” referred to in Article 182 (2) of the Lemitation Act should receive a restricted meaning, and would mean only the decree of the appellate Court which was sought to be executed. As stated earlier, the claim in the present case was against two defendants. There was a single decree, though such decree comprised two parts: (1) a direction in favour of the appellant against the respondent for payment of Rs. 34,479-6-2, and (2) a direction in favour of the 2nd defendant for costs to be paid by the appellant. It was the latter part of the decree that was the subiect-matter of the appeal to this Court.

The question that arises for consideration is whether the appeal to this Court should be held to be from the decree which is now executed. In Satish Chandra Chaudhuri v. Girish Chandra Chakravarthy2, a suit was laid to recover a sum of money against two persons. The suit was decreed against one of them, while it was dismissed against the other. There was an appeal by the plaintiff in regard to the latter portion of the decree, which ultimately failed. A question arose whether the time for execution of the decree against the former should run from the date of the original decree itself or from the date of the dismissal of the appeal, with which the judgment-debtor sought to be proceeded against was not concerned. It was held that, where an appeal had been preferred against a decree, the period of limitation for an application to execute the original decree should run from the date of the appellate decree, though the appeal was against one defendant and the application for execution was. against the other. In Nagendra Nath Dey v. S