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Case Number

Letters Patent Appeal No. 20 of 1951

Advocates

M.M Jape, for the appellant.
V.S Desai, for the respondent.

Judges

Mr. M.C Chagla, C.J
Mr. Dixit, J.

Acts

art. 182(5) of the Limitation Act
s. 14(2) of the Limitation Act.
GENERAL CLAUSES ACT

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Smart Summary

Structured Summary of the Opinion (Chagla, C.J.)

Factual and Procedural Background

The appellant (decree-holder) obtained an ex-parte money decree in Suit No. 5 of 1934 in the Ahmednagar Court on 12 February 1935. That ex-parte decree was set aside on 5 November 1936 and a subsequent ex-parte decree was passed on 26 November 1936.

The decree-holder sought to execute the 12 February 1935 decree in the Poona Court by filing multiple execution applications (darkhasts) over a lengthy period:

Darkhast No. 547 of 1935 — disposed 15 January 1936.
Darkhast No. 52 of 1939 — presented 11 January 1939.
Darkhast No. 20 of 1941 — presented 31 October 1941; disposed 29 September 1942 for non-prosecution.
Darkhast No. 887 of 1943 — presented 10 June 1943; disposed 1 February 1946 after partial payment of Rs. 50 by the respondent.
Darkhast No. 63 of 1946 — presented 12 September 1946 and is the subject of this appeal (the darkhast under appeal).

The appellant amended the 1946 darkhast on 21 March 1947 to state that the decree of 12 February 1935 "had been revived on 26 November 1936"; that amendment was allowed. The appellant then applied to the Ahmednagar Court to transfer the decree of 26 November 1936; that decree was transferred on 6 June 1947. A further amendment on 16 June 1947 inserted in the execution form that the Poona Court had received a certificate from Ahmednagar dated 6 June 1947 concerning the decree revived on 26 November 1936. The executing Court ordered execution to proceed.

An appeal from that executing order was allowed by Mr. Justice Bavdekar, who held the darkhast not maintainable. The decree-holder (appellant) brought this Letters Patent Appeal to the High Court.

Legal Issues Presented

Whether the darkhast (the execution application) presented in the Poona Court was maintainable when the original decree (12 February 1935) had been set aside and a subsequent decree (26 November 1936) existed.
Whether earlier execution applications (darkhasts) seeking to execute the decree of 12 February 1935 can, by virtue of art. 182(5) of the Limitation Act, save the later application to execute the decree of 26 November 1936 from the bar of limitation.
Whether the Poona Court had jurisdiction to entertain execution proceedings in the absence of a judicial order of transfer and the certificate under Order XXI, rule 6 (i.e., whether the absence of certificate was merely an irregularity or fatal to jurisdiction).
Whether the principle of res judicata (constructive res judicata) could prevent the respondent from now raising the objection that the earlier darkhasts were not maintainable.
Whether s. 14(2) of the Limitation Act could save the appellant's claim on the ground that earlier darkhasts were prosecuted in good faith in a Court unable to entertain them.

Arguments of the Parties

Appellant's Arguments (as advanced by Mr. Jape)

The decree of 26 November 1936 stated it should be the same as the decree passed on 12 February 1935; therefore the decree-holder was entitled to execute the decree dated 12 February 1935 and to present the earlier darkhasts for that decree.
The respondent's failure earlier to object that the darkhasts sought execution of a non-existent decree should preclude him from now raising that objection (invoking constructive res judicata).
Earlier darkhasts should be treated as containing a mere misdescription (i.e., they were really applications to execute the 26 November 1936 decree), and thus the earlier steps should be treated as within art. 182(5) of the Limitation Act.
Even without a certificate, if the respondent's property lay within the Poona Court's jurisdiction the Poona Court had inherent jurisdiction to execute the decree and failure to obtain a certificate was a mere irregularity.
Reliance on authority: Balakrishnayya v. Linga Rao — where an executing Court's earlier order was held to operate as res judicata and inherent jurisdiction was recognised in different factual circumstances.
Reliance on authority: Subramanian v. Muthuswami — where earlier applications were treated as in accordance with art. 182(5) in the context of a revised decree and continuous liability.
Finally, reliance on s. 14(2) of the Limitation Act — that earlier darkhasts were prosecuted in good faith in a Court unable to entertain them, and therefore limitation should be extended.

Respondent's / Other Contentions (as reflected in the opinion)

The execution applications before 16 June 1947 sought execution of the 12 February 1935 decree which had been set aside on 5 November 1936 and therefore was not subsisting or capable of execution.
The application to execute the decree of 26 November 1936 was first made only on 16 June 1947 and, as presented, was barred by limitation (three-year period under art. 182).
The earlier darkhasts were not applications in accordance with law (they sought to execute a non-existent decree) and the Poona Court lacked jurisdiction in the absence of a proper transfer and certificate.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Balakrishnayya v. Linga Rao (Madras High Court)	The executing Court's order directing execution had operated as res judicata in subsequent execution proceedings; an executing Court may have inherent jurisdiction over property within its territorial limits and absence of an order of transfer can be an irregularity.	The Court distinguished the case: facts differed (there a final decree was not set aside and jurisdiction over mortgaged properties had been transferred administratively). The court held the Madras decision inapplicable to the present facts where the original money decree had been set aside and the Poona Court could not be treated as having inherent jurisdiction absent a transfer.
Subramanian v. Muthuswami (Madras High Court — single Judge)	An earlier application for execution was treated as being in accordance with art. 182(5) where there was a revised decree and continuous liability; the earlier steps were held to save limitation for a later execution of the revised decree.	The Court declined to extend this principle. It distinguished the facts: there the original decree was not set aside (only revised), and liability remained continuous; here a decree had been set aside and replaced — a materially different situation not covered by that authority.

Court's Reasoning and Analysis

The Court's analysis proceeded in a series of focused legal findings grounded in the facts and statutory requirements:

Status of the earlier decree: The Court held that the decree of 12 February 1935 was set aside on 5 November 1936 and therefore "ceased to be a subsisting decree" — it effectively ceased to exist; it could not be executed after being set aside.
Res judicata argument: The Court rejected the contention that constructive res judicata barred the respondent from challenging maintainability. The limitation objection to the application presented on 12 September 1946 had never been decided previously, and even if a previous order had treated the older decree as executable, the present question concerned the execution of the 26 November 1936 decree and not the earlier non-existent decree.
Misdescription argument: The Court found no basis to treat the earlier darkhasts as mere misdescriptions. The decree-holder consistently intended to execute the 12 February 1935 decree (which had been set aside) and did not treat those filings as attempts to execute the 26 November 1936 decree until after that later decree had been transferred in 1947. On these facts the Court concluded the earlier darkhasts were not applications for the later decree.
Application of art. 182(5) Limitation Act: The Court identified three conditions necessary for an earlier application to save limitation under art. 182(5): (a) the earlier application must be for execution "in accordance with law"; (b) it must be made to the proper Court; and (c) it must be an application for execution of the same decree which the decree-holder later seeks to execute. The Court found none of these conditions satisfied here because:
- The earlier darkhasts were not in accordance with law (they sought execution of a decree that was non-subsisting).
- They were not to the proper Court because the second decree (26 November 1936) had not been transferred to Poona at the time; the Poona Court lacked jurisdiction to execute a decree passed by another Court absent a proper transfer and certificate.
- They were not applications for execution of the decree now relied upon (the 26 November 1936 decree) but for an earlier and different decree.
Jurisdiction and transfer procedure: The Court analysed the transfer process: when a decree is to be executed by a transferee Court, the decree-holder must apply for transfer; the Court that passed the decree must pass a judicial order transferring it, and then the ministerial act is sending the certificate under Order XXI, rule 6. Absent even the judicial order of transfer (let alone certificate), the Poona Court could not be treated as having jurisdiction. The Court rejected the submission that absence of certificate was merely a curable irregularity in the circumstances of this case because here there was not even an application and judicial order of transfer when the Poona Court was first asked to execute.
Distinction from cited authorities: The Court carefully distinguished the Madras decisions relied on by Mr. Jape (Balakrishnayya; Subramanian). In each instance the facts were materially different (mortgage context; administrative transfer of territorial jurisdiction; revised decree rather than a decree set aside) so the principles from those authorities could not be applied to save limitation or jurisdiction here.
s. 14(2) Limitation Act: The Court rejected the plea under s. 14(2). It reasoned that the earlier darkhasts were not for the "same relief" as required, that "good faith" under s. 14(2) (as defined in the Limitation Act) requires prosecution with due care and attention, and that the earlier darkhasts were not prosecuted with the required care because the decree-holder should have appreciated the need for proper transfer and certificate to execute the later decree. Moreover, the earlier darkhasts were not merely defective for want of jurisdiction — they were not maintainable on the merits because they sought execution of a nonexistent decree.
Conclusion of analysis: Because the first application to execute the 26 November 1936 decree was only effectively presented on 16 June 1947 (after transfer), the present application was, prima facie, barred by limitation and could not be saved by art. 182(5) or s. 14(2). Accordingly, Mr. Justice Bavdekar's view that the darkhast was not maintainable was endorsed.

Holding and Implications

Holding:

APPEAL DISMISSED.

Implications (direct and specific to the case):

The darkhast (execution application) under appeal was not maintainable and the appeal fails.
The Court held the earlier darkhasts could not be treated as valid applications under art. 182(5) because they were not in accordance with law, were not before the proper Court, and were not applications for execution of the same decree now relied upon.
The executing Court's order was set aside in the appellate process and the decree-holder cannot rely on the earlier execution proceedings to relieve the later application from the bar of limitation.
There is no order as to costs of the appeal (the opinion so directs).

Broader implications: The opinion confined itself to the facts and statutory interpretation in this case. It distinguished the authorities cited and limited application of art. 182(5) and s. 14(2) to circumstances where the earlier steps were properly prosecuted, taken in the proper Court, and related to the same subsisting decree. The judgment does not purport to lay down a novel or broad new principle beyond these conclusions.

Appeal dismissed.

Delivered by: Chagla, C.J. (with reference to Mr. Justice Bavdekar’s earlier order)

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Sadashiv Shivram Nisal (Original Decree-Holder), v. Govind Sadashiv Pathak (Original Judgment-Debtor), )

Chagla, C.J:—

This is a Letters Patent Appeal which raises the question of the maintainability of a certain darkhast filed by the decree-holder. In our opinion, if the decree-holder finds himself in a position where he cannot execute the decree which he has obtained against the judgment-debtor, he has largely to thank himself. This case is a glaring instance of a litigant obtaining a decree and then doing nothing more than keep it alive by filing darkhast after darkhast.

The facts briefly are that the appellant, who is the decree-holder, filed a suit in the Ahmednagar Court, being suit No. 5 of 1934, and obtained a money decree against the judgment-debtor, the respondent, on February 12, 1935. The decree was ex-parte and the respondent applied to set aside the ex-partedecree and the Court set aside the ex-parte decree on November 5, 1936. The respondent was again absent and an ex-parte decree was again passed on November 26, 1936. On February 25, 1935 the appellant applied to the Ahmednagar Court for the transfer of the decree which had been passed on February 12, 1935 to the Poona Court where the respondent had some property and the Court made an order transferring the decree and issued the necessary certificate under O. XXI, r. 6. Having obtained the certificate, the appellant filed a darkhast in the Poona Court for execution of the decree of February 12, 1935. This was darkhast No. 547 of 1935. This darkhast was disposed of on January 15, 1936. The appellant filed another darkhast on January 11, 1939 being darkhast No. 52 of 1939. This darkhast was also for the execution of the decree of February 12, 1935. The appellant presented a third darkhast on October 31, 1941 being darkhast No. 20 of 1941. Again this was for the execution of the decree of February 12, 1935. In answer to this darkhast the respondent appeared and filed a written statement. This darkhast was disposed of on September 29, 1942 for non-prosecution. A fourth darkhast was filed again for the execution of the earlier decree on June 10, 1943 being darkhast No. 887 of 1943 and this was disposed of on February 1, 1946, the respondent having paid Rs. 50 in part satisfaction of the decree. The final darkhast was filed on September 12, 1946 being darkhast No. 63 of 1946 which is the darkhast under appeal and as before the darkhast was for the execution of the earlier decree. On March 21, 1947 the appellant applied for an amendment of the darkhast and the amendment sought was to insert in the application for execution the following sentence that the said decree, viz. the decree of February 12, 1935, had been revived on November 26, 1936. This amendment was allowed. Then the appellant applied to the Ahmednagar Court for the transfer of the decree of November 26, 1936 and the decree was transferred on June 6, 1947. On June 16, 1947 the appellant applied for another amendment of his darkhast and the amendment he sought was the insertion in column 6 of the darkhast the following: “This Court has received from the Ahmednagar Court on June 6, 1947 the certificate of the decree revived on November 26, 1936.” This amendment was also granted and the executing Court ordered the execution to proceed. An appeal was preferred from that order which came up before Mr. Justice Bavdekar, and Mr. Justice Bavdekar allowed the appeal and held that the darkhast was not maintainable. The decree-holder has now come to us in this Letters Patent Appeal.

Now, it is clear that there was no application for execution of the decree of November 26, 1936 till the darkhast of September 12, 1946 was amended on June 16, 1947. It was only after that decree was transferred to the Poona Court that the decree-holder made the necessary application to treat the darkhast as a darkhast to execute the subsequent decree. Prima facie, therefore, inasmuch as the first application for execution of the decree of November 26, 1936 was made on June 16, 1947, the application is barred by limitation, unless the decree-holder is in a position to satisfy us that he has taken any step under art. 182(5) of the Limitation Act for execution of the decree in a proper Court and the application for execution was in accordance with law.

Mr. Jape has advanced many ingenious arguments in order to save this darkhast. His first contention is that inasmuch as the decree that was passed on November 26, 1936, stated that the decree should be the same as passed on February 12, 1935, it was competent to the decree-holder to execute the decree of February 12, 1935 and he was within his rights in filing the various darkhasts that he did for the execution of the decree of February 12, 1935. In our opinion that contention is entirely untenable. The decree of February 12, 1935 was set aside by the Court on November 5, 1936 and once that decree was set aside it ceased to be a subsisting decree which was capable of execution. It is not correct to say that decree became unexecutable. It is truer to say that decree ceased to exist and if the decree ceased to exist naturally no possible question about its executability can arise. It is then urged by Mr. Jape that it was open to the judgment-debtor to raise the contention that the darkhast presented by the decree-holder were not maintainable inasmuch as he was seeking to execute a decree which was not existing and inasmuch as he did not raise this contention it is not open to him now to take that contention and he should be debarred from doing so on the principle of res judicata. What is relied upon is the principle of constructive res judicata. In our opinion the principle of res judicata does not come into play at all in this case. What is now being urged by the judgment-debtor is that the application for execution which is presented on September 12, 1946 is barred by limitation. That question has never been decided by any Court before. Even assuming that the Court held constructively that the old decree was executable, we are not concerned now with any darkhast which is seeking to execute the old decree; we are now concerned with a darkhast which is seeking to execute the decree which was passed on November 26, 1936. It is also difficult to understand why the judgment-debtor should have taken up the contention that the old decree was not executable. If the decree was not subsisting even without the judgment-debtor taking up that contention, the Court had no jurisdiction to entertain a darkhast to execute a decree which as it were had been wiped off from the record of the Court.

It is then urged by Mr. Jape that we should treat the darkhast filed by the judgment-creditor prior to September 12, 1946 as darkhast for the execution of the decree dated November 26, 1936, and Mr. Jape says that we must look upon those darkhasts as containing a misdescription of the decree. Mr. Jape says that the amount of the decree is the same, the liability subsisting against the judgment-debtor is the same, and the only mistake in the darkhast is that instead of stating the date of the decree to be February 12, 1935 what is stated is November 26, 1936. Now, we can understand a case of misdescription if the decree-holder purports to execute a particular decree and in attempting to execute it he wrongly describes the decree either as to its date or as to its contents. But the whole position here is that the judgment-creditor clearly intended to execute the decree of February 12, 1935 and not the decree of November 26, 1936. He got the first decree transferred and he never got the second decree transferred and right up to June 6, 1947 when the second decree was transferred, his whole attempt was to execute the decree which had been set aside. On these facts it is impossible in our opinion to contend that the darkhast contained any misdescription and the Court must look upon the earlier darkhast as really darkhasts for the execution of the subsequent decree.

Reliance is placed by Mr. Jape upon art. 182(5) of the Limitation Act and Mr. Jape wants us to look upon the earlier darkhasts as applications for execution which fall within the purview of art. 182(5). Now, three conditions are necessary before an application for execution can fall under art. 182(5) and can save the period of limitation for the execution of a decree which is three years. It must be an application for execution in accordance with law, it must be to the proper Court, and it must be an application for the execution of the decree which the decree-holder is seeking to execute by the subsequent darkhast and in respect of which he is attempting to save limitation. In our opinion none of these three conditions are present in the present case. The earlier darkhasts were not in accordance with law because they were applications for execution of a decree which was not subsisting. As we shall presently point out, they were not to the proper Court because the second decree had not been transferred to the Poona Court for execution and the Poona Court had no jurisdiction to execute the decree. Thirdly, they were not applications for execution of the decree contemplated by art. 182(5); they were applications for the execution of an entirely different decree.

With regard to the question as to whether the Poona Court was the proper Court, an interesting argument has been advanced to us by Mr. Jape and Mr. Jape's contention is that even without a certificate being issued by the executing Court, if the property of the judgment-debtor is situated within the jurisdiction of the Poona Court, then the Poona Court had inherent jurisdiction to execute the decree and failure on the part of the decree-holder to obtain a certificate was a mere irregularity which would not deprive the Poona Court of its jurisdiction. The question may be looked at from this point of view. Under the Code, a decree can be executed either by the Court that passed the decree or by the transferee Court. When the decree is to be executed by the transferee Court, an application for transfer has got to be made by the decree-holder. It is on that application that the Court passes a judicial order. That order having been passed, then certain ministerial act has got to be done and that ministerial act is the sending of the certificate under O. XXI, r. 6 by the Court that passed the decree to the Court which has to execute it. We can understand a case where a decree-holder applies for transfer, an order is made by the Court, and then the certificate is not issued and not sent to the transferee Court. Under those circumstances it would be open to the decree-holder to contend that a judicial order having been made the transferee Court was given jurisdiction and the mere fact that a certificate was not sent would not deprive that Court of its jurisdiction. But in this case no application even was made by the decree-holder for the transfer of the decree, much less a judicial order being passed by the Court. Therefore we have not here a case where there is merely the absence of a certificate contemplated by O. XXI, r. 6. Here we have the absence even of a judicial order passed by the Court which passed the decree, and it is difficult to take the view that the Poona Court would be the proper Court, a Court with jurisdiction, when the condition precedent to its having jurisdiction has not been complied with, viz. a judicial order passed by the Court which passed the decree ordering the transfer of the decree.

Reliance was placed by Mr. Jape on a decision of the Madras High Court reported in Balakrishnayya v. Linga Rao(4). Now, the facts there were very different. It seems that a preliminary mortgage decree was passed on December 19, 1924 by the Court of the Subordinate Judge at Bapatla. Then there was an appeal against the preliminary decree to the High Court, but while the appeal was pending a final decree was passed by the trial Court on October 3, 1927. That was the Court at Bapatla. On August 1, 1930 the territorial jurisdiction over the mortgaged properties was transferred from the Court at Bapatla to the Court of the Subordinate Judge at Tenali and the suits pending in the Bapatla Court were transferred to the Court at Tenali. But this particular mortgage suit was not transferred. On May 8, 1934 the High Court disposed of the appeal which was pending against the preliminary decree and made certain modifications in the decree and the decree-holder without applying for obtaining a final decree in terms of the modification introduced by the High Court, filed in the Court at Tenali on April 2, 1937 a petition for execution of the decree against the judgment-debtor. This application was dismissed on January 26, 1939- A fresh execution petition was filed in the Court at Tenali in 1940 and the objection was taken that the decree was unexecutable in the absence of a final decree passed in accordance with the decree of the High Court and that the Tenali Court had no jurisdiction to entertain the execution petition, and the Court held that the order passed by the Court at Tenali on the first darkhast was an order directing execution to proceed on the footing that the decree was one capable of execution and of being executed by the Court, and that order operated as res judicata in subsequent execution proceedings, and the Court also held that the Court at Tenali had inherent jurisdiction over the mortgaged properties which were situated within its territorial limits, and that the absence of an order of transfer of the decree by the Court at Bapatla in accordance with s. 39 of the Civil Procedure Code was only an irregularity in the assumption of jurisdiction by Court at Tenali. Mr. Jape relies on both parts of this decision. He says that here also we have a case where a darkhast was presented to execute a decree which was not executable and inasmuch as no objection was taken by the judgment-debtor the order was held to operate as res judicata. Now, the distinction is clear. In this case there was a decree absolute passed by the trial Court. The preliminary decree was modified by the High Court and it is true that the decree-holder should have obtained a proper final decree in terms of the preliminary decree passed by the High Court which decree should have been executed. But on the facts it could not be said that the final decree was set aside and ceased to exist as in the case we have before us. Therefore, on the peculiar facts of that case the Madras High Court held that the doctrine of res judicata came into operation. On the other points also the position is different from the position we have here. By an administrative order the Court at Tenali was given jurisdiction over the mortgaged properties and the Madras High Court was dealing with a mortgage suit. Therefore when the application for execution was presented to the Tenali Court, the Tenali Court was the Court which could have passed the decree in the suit. As a matter of fact that was the only Court that could have passed the decree, the jurisdiction having been taken away from the Bapatla Court. It was under these circumstances that the Madras High Court held that the Tenali Court had inherent jurisdiction to execute the decree inasmuch as it had jurisdiction over the mortgaged properties and therefore jurisdiction to entertain the mortgage suit. The facts here are that the decree which has been passed is a money decree and the only Court which could have passed that decree was the Court at Ahmednagar. The Poona Court had no jurisdiction as far as the suit was concerned, nor had it jurisdiction to pass the decree. Its jurisdiction only arises by reason of a decree being transferred to it and if the decree is not transferred it is difficult to see how the Poona Court can have jurisdiction to execute the decree which it did not pass and which it could not have passed and which was passed by another Court. Mr. Jape draws cur attention to a statement of the law in Sir Dinshaw Mulla's well known commentary on the Civil Procedure Code under s. 39 and at page 169 the learned author says:

“Ordinarily an order transferring a decree under the section is merely a ministerial order”,

and for that purpose the learned author relies on the Madras case to which reference has just been made. With great respect, it is difficult to accept that statement of the law. When an application for transfer is made, notice is served upon the judgment-debtor, he is entitled to raise objections, the objections are heard, and after the objections are heard the Court makes an order transferring the decree. It is difficult to understand how under these circumstances the order made by a Court under s. 39 is a ministerial order. As already pointed out, what is ministerial is not the making of the order but the issue of the certificate under O. XXI, r. 6.

Then reliance is placed by Mr. Jape on another decision of the Madras High Court which is reported in Subramanian v. Muthuswani(5). That is a judgment of a single Judge Mr. Justice King, and there also the facts were very different. The decree-holder obtained an ex-parte decree for Rs. 1,600 against three defendants. Defendant No. 1 applied to set aside the decree and an order was passed in his favour that the decree should be set aside if he deposited a sum of Rs. 1,100 by a certain time. Part of this amount was deposited but not the whole by the time stated in the order of the Court, and on a subsequent date the Court passed a revised decree in which decree the amount deposited was given credit to the decree-holder and the balance was found due under the decree. The decree-holder filed a darkhast on the assumption that the amount due under the original decree was still due to the judgment-debtor. At a later stage the decree-holder realised his mistake and corrected it and wanted to execute the revised decree, and the question that arose for Mr. Justice King's consideration was whether the subsequent application was barred by limitation, and the learned Judge took the view that the earlier applications for execution were made in accordance with law within the meaning of art. 182(5); and Mr. Jape wants us to apply the principle of this case to the facts before us. Now, the decree passed in the Madras case was never set aside, the condition for setting aside the decree was not complied with, and the original decree stood and was subsequently revised. It was on these facts that the learned Judge, with respect to him, went as far as it was possible to go and held that though there might have been two decrees, one superseding the other, and though technically speaking the second decree is the only one that can possibly be executed, there was only one liability and there had never been any doubt that the judgment-debtors in that case were under a liability, as a result of the litigation, to the decree-holder. Mr. Jape says that in this case, too, there is no doubt as to the liability, that the liability results from the same litigation, and we must take a liberal view of art. 182(5). In our opinion it is impossible to accept Mr. Jape's contention. With respect to Mr. Justice King, what art. 182(5) contemplates is not the question of liability; the question is whether the application for execution contemplated by that article is in accordance with law. Although it may be possible to take the view that there is no difference between executing an original decree and a revised decree, it is impossible further to extend this principle by taking the view that there is no difference in attempting to execute a decree which has been set aside and a decree which has taken its place. Therefore, in our opinion, even assuming the view taken by Mr. Justice King, with respect, is right, the principle deducible from that case is not applicable to the facts here.

Mr. Jape finally urged that we should give him relief under s. 14(2) of the Limitation Act. Mr. Jape says that the earlier darkhast should be looked upon as applications for the same relief prosecuted in good faith in a Court which from defect of jurisdiction or other cause of like nature was unable to entertain it. Now, there are several difficulties in the way of Mr. Jape for persuading us to hold that s. 14(2) has any application. In the first place, it is extremely doubtful whether the earlier darkhasts were for the same relief. The relief sought in those darkhasts were for the execution of the decree of February 12, 1935. The relief sought in the darkhast under appeal is for the execution of the decree of November 26, 1936. But the more serious difficulty is that s. 14(2) requires the prosecution of the earlier proceeding in good faith. Now, “good faith” as contemplated by this sub-section is not the same good faith as contemplated under the Bombay General Clauses Act. We have a special definition of “good faith” in the Limitation Act and the definition is: “Nothing shall be deemed to be done in good faith which is not done with due care and attention. When we turn to the definition of “good faith” in the General Clauses Act, the definition is “A thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not.” Therefore while the Bombay General Clauses Act emphasises “honesty” and ignores the factor of negligence, the Limitation Act emphasises not “honesty” but the fact that due care and attention has been given to the prosecution of the earlier application. I would agree with Mr. Justice Bavdekar that on the facts of this case it is impossible to accept the position that if care and attention had been taken the party could not have realised that he should have obtained the necessary transfer certificate in respect of the subsequent decree and that he should have attempted to execute the subsequent decree and not the earlier decree which had ceased to exist. Further, s. 14(2) also requires that the earlier application should not be tenable by reason of defect of jurisdiction in the Court to which the earlier application was presented. But in this case, apart from the question of any defect in jurisdiction in the Poona Court, the application was not maintainable at all because the application was to execute a decree which was non-existent. Therefore, even if the Poona Court had jurisdiction, the Poona Court could not maintain an application for execution in respect of a decree which could no longer be executed. Therefore in one sense it is not true to say that the appellant was prosecuting his earlier darkhasts in a Court without jurisdiction. He was in fact prosecuting darkhasts which were not maintainable at all on merits and were not in accordance with law. If the darkhasts were not in accordance with law, then no question of s. 14(2) can possibly arise. Therefore, whichever way one looks at it, the position is clear that the present application to execute the decree of November 26, 1936, inasmuch as it was presented long after the period of limitation which is three years, is barred by limitation. Limitation cannot be saved because in our opinion the earlier darkhasts cannot be looked upon as applications for execution in accordance with law as required by art. 182(5).

We are therefore of the opinion that Mr. Justice Bavdekar was right in the view that he took. The result is that the appeal fails and must be dismissed.

Mr. Jape tells us that the judgment-debtor in this case is a pleader. The law of limitation is as much open to a pleader as to any other litigant in this country, but we do expect a slightly higher ethical standard from a practitioner in our Courts than from any other litigant, and Mr. Desai very fairly and very rightly told us that he has done his best to persuade his client to satisfy the decree which was passed against him to the extent that he was capable of doing, and although we have delivered this judgment and we have held that the darkhast is barred by limitation, Mr. Desai has assured us that he will still persuade his client to pay some amount in satisfaction of the decree. Mr. Jape says he is prepared to accept any amount that the pleader would pay. We hope that although he may have scored a triumph in getting the darkhast dismissed, he will think more of his own character and pay some amount to the decree-holder so as to satisfy him that lawyers can rise above questions of limitation. Limitation is after all a technical plea and there is really no defence on merits to this darkhast. As we said before, it is the fault of the decree-holder that he did not pursue his remedy for a long time although the decree was passed as far back as 1936, and we are now in 1954.

There will be no order as to costs of the appeal.