JUDGMENT

Jai Lal, J. - The only question in this case is one of limitation. The brief facts of the case arc that the respondent obtained a money decree against the predecessor in the interest of the appellant and in execution of that money decree he realised the amount, involved in the present suit, in excess of the amount due to him under the decree. It appears that he had received some amounts from the judgment-debtor which in the previous application for execution he admitted as having received from him but in the final application that he made on 8th October 1925, he did not give credits for the amounts which he had previously admitted to have received and executed the decree for the full amount and on 19th November 1927, had a house of the judgment-debtor sold, which he purchased himself. It having been found that the amount claimed in the present suit by the previous judgment-debtor was actually realized by the respondent in excess of the amount which was really due to him under the decree, the question is what article of the Limitation Act applies to the suit and from what date the period be counted. In Ganpat v. Kirpa Ram (1892) 79 P.R. 1892 Article 115, Lim. Act, was held to be applicable to a suit of this nature. It must however be noted that in that case the decree-holder had not certified the payment at all to the executing Court whereas in the present case he had previously certified to the Court the payment of the amount to him by the judgment-debtor. Article 97 also was in the alternative considered to be possibly applicable to the facts of that case.

2. In my opinion Article 97 does not apply, Article 115 may apply and in all probability the present case is governed by Article 120, Lim. Act, owing to the fact that the decree-holder had actually certified the payment in Court but in the final application for execution omitted to give credit for it. Even if Article 115 were applicable, the limitation, in my opinion, would start from 19th November 1927, when the appellant's house was sold. In the Chief Court judgment already cited an opinion was expressed that the limitation starts from the date of the application for execution of the decree because it is on that date there is a breach of contract by the decree-holder to give credit for the amount received by him. Assuming that Article 115 was applicable to the facts of the reported case it was not necessary to decide from what date time would begin to run as the suit had been instituted within three years from the earliest date and was clearly within time, i.e., even if time were counted from the date of the application. The suit, in my opinion, was within time in this case and the view of the learned Senior Subordinate Judge is erroneous. No other point was urged before me by cither party. The consequence is that this appeal is accepted, the decree of the Senior Sobordinate Judge set aside and that of the trial Court restored with costs throughout.