The main legal point established in the judgment is that in certain cases, where judgments create new obligations without providing for their execution, a suit may be maintainable, and the applicable period of limitation should be determined based on the nature of the new obligation created.

Ramesam, J.

1. The facts of this appeal may be briefly stated:

2. The plaintiff, the first defendants father and two others carried on a partnership business at Zanzibar. O.S. No. 143 of 1909 was filed in the Subordinate Court of Madura East for its dissolution. In that, suit, the present plaintiff was the 5th plaintiff and the father of the present 1st defendant was the 1st defendant. A preliminary decree was passed on 27th October, 1909, and a Commissioner was appointed. The Temporary Subordinate Court of Ramnad, to whose file the suit was then transferred, confirmed the report of the Commissioner. Paragraph 6 of the order confirming the report runs as follows:

It is therefore ordered that the 1st defendant do forthwith pay into Court the sum of Rs. 2.611-6-3 being the amount found due to the partnership by him, that, in default of such payment, the 5th plaintiff is appointed Receiver to realise and collect the said amount with power to bring and defend suits in his own name, etc. (see Ex. D).

3. The final decree (Ex. E.) of the Subordinate Court was passed on 14th October, 1911. It says, that out of the amount collected by the 5th plaintiff as Receiver in realising the only item of assets of Rs. 2,611-6-3 due from the 1st defendant ho (the 5th plaintiff) do take, etc.

4. There was an appeal to the District Court and the High Court and the Subordinate Courts decree wag finally confirmed by the High Court on 5th February, 1917. Meanwhile there was an attempt to execute the decree of the Subordinate Court in E.P. No. 309 of 1914. The Subordinate Court of Ramtiad held that the decree was unexecutable and that it contemplated that the 5th plaintiff as Receiver should sue the 1st defendant to recover the amounts (Exhibit G. dated 26th October, 1914). There was no appeal against this order and the order is now binding on all the parties. The result is that the decree must be construed, in the light of that order, to be a decree declaring or creating rights which are unenforceable in execution and can be enforced only by suit.

5. The present suit is presented on 4th February, 1920, for recovering the said amount. The plaintiff obtained a decree and defendant appeals.

6. He contends that the suit is not maintainable and is barred by limitation. It is true, as he points out, that a claim to recover a sum of money due from one of the partners must form part of the inquiry in the action for winding up the partnership and no suit will lie after a suit for an account is barred by limitation. Gopala Chetty v. Vijayaraghavachariar A.I.R. 1922 P.C. 115. But the respondent contends that the judgment (as construed by the order of 26th October 1914, Exhibit G) creates fresh rights in the place of the older rights and this suit is an action on the judgment. This is obvious, and, provided there is no obstacle in India to a suit on a judgment, when there is no other remedy to enforce the right, the contention ought to prevail.

7. At common Law, actions on judgment lie whether the remedy by execution is available or not. [Sea Williams v. Jone 13 M. and W. 628; Hutohinson v. Gillespie (1856) 11 Ex. 798; Martbeilla Iron Ore Co. v. Allen 47 L.J.C.P. 601: and Black on Judgments, Vol. II, Section 958. This is admitted by the appellant. In India it is settled that no action lies on an executable judgment, the only remedy being execution, the principle being embodied in Section 47, Civil Procedure Code. (Section 244 of the Code of 1882). An exception was at one time recognised by which suits were permitted to be brought in the High Court on judgments of a Court of Small Causes in order to obtain execution against imnaovable property, Bhavani-shankar Shevakram v. Purusairi Kalidas (1882) 6 Bom. 292 on the ground that where an action on the judgment will give a higher or better remedy, the case is different see Mancharam Kalliandas v. Bakshe Saheb (1869) 6 B.H.C. 231. The exception is now obsolete. (Section 94 of Act XV of 1882). But Couch, C.J. also says