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Case Number

Second Appeal No. 652 of 1944

Advocates

N.M Hungund, for the Appellants.
G.P Murdeshwar, for the Respondent.

Judges

Mr. Sen
Mr. Rajadhyaksha, JJ.

Acts

provisions of s. 145 of the Code of Civil Procedure and s. 128 of the Indian Contract Act
s. 253 of the earlier Code of Civil Procedure (Act XIV of 1882)
cl. (5) of art. 182 of the Indian Limitation Act.
art. 182(5) of the Indian Limitation Act
art. 182 of the Indian Limitation Act.
art. 179 of the Indian Limitation Act
s. 128 of the Indian Contract Act.
Section 253 of the Code of 1882
art. 182 of the Limitation Act
INDIAN LIMITATION ACT

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Smart Summary

Structured Summary of the Opinion (Sen, J.; concurrence by Rajadhyaksha, J.)

Factual and Procedural Background

Context: Second appeal arising out of darkhast (execution) proceedings concerning a decree for possession and mesne profits.

Five persons obtained a decree in 1928 from the Court of the Joint Subordinate Judge of Bijapur against certain judgment-debtors for possession and mesne profits. The judgment-debtors appealed to the District Court and applied for a stay of execution under Order XLI, rule 5 of the Code of Civil Procedure; the stay was granted on condition that the present respondent (a surety) stood surety for due satisfaction of the decree if the appellate court confirmed or varied the decree. The decree was confirmed on appeal.

The decree-holders filed execution applications (darkhasts) in 1930, 1932 and 1935; none of those earlier darkhasts sought execution against the surety. In 1939 the decree-holders filed the present darkhast seeking execution against the legal representatives of defendant No. 1 and against the surety-respondent. The principal contested question was whether the 1939 darkhast was within the period of limitation as against the surety.

The trial Court held the darkhast to be time-barred as against the surety, following Narayan v. Timmaya and reasoning that the surety could not be treated as a joint judgment-debtor for the purposes of Explanation I to Article 182 of the Limitation Act. The District Court affirmed that view (also relying on Narayan v. Timmaya and Yusuf Alli v. Papa Miya). The matter reached the Appellate Bench in the present opinion.

Legal Issues Presented

Whether the present darkhast (filed in 1939) was within the period of limitation as against the surety-respondent.
Whether prior applications for execution (made against the principal judgment-debtor) save or "tack on" limitation as against a surety under clause (5) of Article 182 of the Indian Limitation Act.
Whether Explanation I to Article 182 (dealing with joint or several decree-holders/debtors) applies to a surety and thereby determines the effect of earlier execution applications on limitation as to a surety.
What is the effect of Section 145 of the Code of Civil Procedure (execution against a person who has become liable as a surety) and Section 128 of the Indian Contract Act on the question of limitation and method of enforcing a surety's obligation.
Whether earlier decisions (notably Narayan v. Timmaya and cases following it) are binding and applicable to the present facts, or distinguishable.

Arguments of the Parties

Appellant (Decree-holders) — Mr. Hungund

Relied on Section 145 of the Code of Civil Procedure and Section 128 of the Indian Contract Act to contend that prior execution applications against the judgment-debtors should save limitation as against the surety under clause (5) of Article 182 of the Limitation Act.
Argued that although the surety is not a "joint judgment-debtor" within the meaning of Explanation I to Article 182, previous applications for execution should "save" limitation as to the surety — relying on Badr-ud-din v. Muhammad Hafiz and Gangaraju v. Subbayya, and distinguishing Narayan v. Timmaya.
Alternatively contended that the surety's obligation under Section 128 of the Indian Contract Act is enforceable (the exact procedural mode not specifically stated) and Section 145 CPC permits enforcement, so Article 182 should operate in favour of the decree-holders.
Relied in argument also on Karuppan Chettiar v. Nagappa Chettiar to support the view that Article 182 applies; the Court treated that specific contention as untenable in light of Section 145 and the opening words of Article 182.

Respondent (Surety) — Mr. Murdeshwar

Relied on Narayan v. Timmaya and certain decisions of the Rangoon, Patna and Calcutta High Courts which followed that case, arguing that authority was binding and required a finding that the darkhast was time-barred as against the surety.
Contended that Explanation I to Article 182 governs and that the scope of clause (5) of Article 182 is not wider than the Explanation; if Explanation I does not cover a surety, then clause (5) should not be taken to apply to an application for execution against a surety.
Pressed the proposition that a surety is not to be equated with a joint judgment-debtor for the purposes of Explanation I and thus earlier execution steps against the principal do not save limitation as to the surety.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court in this Opinion
Narayan v. Timmaya	Held that a decree cannot be treated as passed "jointly" against a judgment-debtor and a surety within the meaning of Explanation I to the Limitation Act (old art.179 / present art.182); therefore an application against the judgment-debtor does not save limitation as to the surety.	The trial and District Courts relied on this decision to hold the darkhast time-barred as to the surety. The present Court reviewed and distinguished Narayan, stating it was not bound by it because that case did not consider the argument based on clause (5) read independently of Explanation I.
Yusuf Alli v. Papa Miya (Yusuf Ali v. Papa Miya)	Followed Narayan v. Timmaya (no further discussion).	Noted as a decision that followed Narayan and was relied upon by the courts below; part of the line of authority the present Court considered but did not feel bound to follow.
K.S.E. Mohamed Cassim v. Jamila Bee Bee	Followed Narayan v. Timmaya and accepted it as good law regarding limitation against sureties.	Cited as another authority that applied Narayan's principle to deny limitation saving in a case involving sureties; relied on by lower courts but distinguished by the present Court.
Raja Raghunandan Prasad Singh v. Raja Kirtyanand Singh Bahadur	Rejected the argument that being "deemed" a party by s.145 CPC makes a person a joint judgment-debtor within Article 182; followed Narayan v. Timmaya.	Relied upon by Mr. Murdeshwar; the Court observed this case did not raise precisely the present point and that their Lordships decided the matter on construction of the bond or on Narayan's basis.
Birendra Chandra v. Tulsi Charan	Held that when sureties are liable only for part of the decretal amount and execution is taken only against them, such execution does not save limitation against the principal judgment-debtors; followed Kusaji v. Vinayak and referenced Narayan v. Timmaya.	Noted as following the Narayan line; Court recorded this to show existence of contrary authorities but analysed and preferred other authorities for present case.
Kusaji v. Vinayak	Authority followed in Birendra Chandra; supports view that execution against sureties may not save limitation as to principals (as interpreted in those cases).	Mentioned as part of the Narayan-supporting line; used to show consistency of that approach in some High Court decisions.
Badr-ud-din v. Muhammad Hafiz	Held that an application to execute a decree by arrest of a surety (or an application taking steps-in-aid of execution against a surety) falls within clause (5) of Article 182 and thus saves limitation; set out the dilemma whether s.145 makes the decree joint or whether clause (5) applies independently — resolved in favour of clause (5).	The Court relied on this reasoning (and the reasoning in connected cases) and adopted the view that clause (5) of Article 182 applies to execution steps taken against a surety; used to distinguish and not follow Narayan.
Gangaraju v. Subbayya	Followed the Allahabad High Court's view (Muhammad Hafiz line) that clause (5) of Article 182 applies to execution against sureties.	Cited as part of the line of authority supporting the applicability of clause (5) to execution measures targeting sureties; relied upon by the Court in reaching its conclusion.
Muhammad Hafiz v. Muhammad Ibrahim	Held that an application to execute the decree by arrest of a surety who had made himself liable for the satisfaction of the decree amounted to asking the court to take a step-in-aid of execution under clause (5) of Article 182.	Characterised as a principal case in the line adopted by the Court; its reasoning was followed and treated as distinguishing Narayan because of the different statutory contexts and the scope of the later Code (s.145 CPC).
Suraj Din v. Narain Rao Parameshwari Prasad	Followed the view in Muhammad Hafiz and Badr-ud-din that execution against a surety amounts to a step-in-aid and saves limitation under Article 182(5).	Included among the authorities representing the opposite view to Narayan; reinforced the Court's acceptance of that line.
Kishan Singh v. Prem Singh	Held that an application against a surety for arrest was a step-in-aid of execution within Article 182 and hence saved limitation as against the judgment-debtor.	Cited to show the practical application of the "step-in-aid" principle; influenced the Court's conclusion that clause (5) is general and covers cases where steps are taken against sureties.
Bachchu Singh v. Radhe Lal	Commented that Explanation I to Article 182 is explanatory of the substantive article and should not be used to restrict application of the article where the article otherwise applies.	Quoted to support the proposition that Explanation I should not be used to narrow clause (5); the Court used this to reject the narrower interpretation urged for Explanation I.
General Accident Fire & Life Assurance Corporation, Ltd. v. Janmahomed	Privy Council observation that considerations of equity or hardship have no place in the application of the Limitation Act.	The Court noted this principle when remarking that equitable considerations cannot override the statutory text of the Limitation Act, thereby tempering purely fairness-based arguments.
Nagendranath De v. Sureschandra De	Privy Council authority similarly stating that equity/hardship do not influence the application of the Limitation Act.	Used alongside General Accident to remind that statutory rules of limitation must govern, not equitable considerations.
Karuppan Chettiar v. Nagappa Chettiar	Referenced by appellant to support applicability of Article 182; specifics in text show the Court regarded that argument as untenable in light of s.145 CPC and the opening words of Article 182.	The Court expressly said it was not necessary to discuss Section 128 arguments and found Karuppan Chettiar-based submissions untenable; thus the case was not adopted as decisive for the appellant.

Court's Reasoning and Analysis

The Court proceeded by identifying two conflicting lines of authorities: (a) the Bombay/Rangoon/Patna/Calcutta line exemplified by Narayan v. Timmaya and followed in Yusuf Alli, K.S.E. Mohamed Cassim and other cases, which treats a surety as not covered by Explanation I and therefore holds that earlier execution applications against the principal do not save limitation as to the surety; and (b) the Allahabad and Madras line exemplified by Muhammad Hafiz v. Muhammad Ibrahim, Badr-ud-din v. Muhammad Hafiz, Gangaraju v. Subbayya and related decisions, which treat an execution application against a surety (or a step-in-aid of execution involving a surety) as falling within clause (5) of Article 182 so as to save limitation.

Key steps in the Court's analytic process:

The Court examined the textual framework: Article 182 (description and period of limitation) and Explanation I. It recognised that Explanation I deals with cases of more than one decree-holder or more than one judgment-debtor, providing clarification about when an application affects some or all parties.
The Court observed that Explanation I makes no explicit reference to a surety. It therefore accepted that Narayan v. Timmaya was rightly decided insofar as it held that a surety and a judgment-debtor are not "joint judgment-debtors" under Explanation I.
However, the Court rejected the proposition that the scope of clause (5) of Article 182 must be confined by the scope of Explanation I. The Court analysed the structure of Explanation I and concluded that Explanation I was an exception/clarification to the general principle in clause (5), not a limiting provision to curtail the generality of clause (5).
The Court emphasised Section 145 CPC which permits execution against a person who has become liable as a surety for the performance of a decree; under Section 145 a surety may be personally proceeded against to the extent of his liability. The Court found no reason why Article 182's limitation rules should not apply when a decree is sought to be executed against such a surety.
The Court found the reasoning in the Allahabad and Madras decisions (that an application to execute against a surety is a "step-in-aid" within clause (5)) persuasive. It accepted the "dilemma" formulation in Badr-ud-din and answered it by holding that clause (5) operates to save limitation where proper execution steps are taken against a surety.
The Court considered but did not need to decide the appellant's alternative argument based on Section 128 Indian Contract Act in detail. It also found Karuppan Chettiar-based submissions untenable in view of Section 145 and the opening words of Article 182.
On that basis the Court concluded it was not bound by Narayan v. Timmaya because Narayan was decided on a line of reasoning that did not address the independent operation of clause (5) when Explanation I does not apply. The Court therefore followed the line of authorities that treated an execution step against a surety as saving limitation under Article 182(5).

The Court therefore held that the 1939 darkhast against the surety was within time because earlier execution applications operated as steps-in-aid under clause (5) of Article 182 and thereby saved limitation as to the surety.

Holding and Implications

Holding: The Court allowed the appeal and held that the darkhast against the surety was in time. The decrees/orders of the Courts below were set aside and the darkhast was ordered to proceed against the surety. (Appeal allowed with costs throughout.)

Implications:

Direct effect on the parties: The orders of the lower courts dismissing the darkhast as time-barred as to the surety were reversed; the execution application may proceed against the surety-respondent.
On wider law: The Court expressly distinguished and declined to treat Narayan v. Timmaya as binding for the present question because Narayan did not consider the operation of clause (5) where Explanation I is not applicable. The Court adopted the reasoning of the Allahabad/Madras line (e.g., Muhammad Hafiz / Badr-ud-din) that an execution application directed at a surety can amount to a step-in-aid of execution and thereby save limitation under clause (5) of Article 182. Thus the opinion supports the view that clause (5) of Article 182 has general application so as to include certain steps directed at sureties.
The Court noted the limits of equity-based appeals to override statutory limitation rules (citing Privy Council authorities), indicating that its reasoning relied on textual and structural interpretation rather than equitable considerations.

Order: Appeal allowed; orders of the Courts below set aside; darkhast to proceed against the surety. (Sen, J.; Rajadhyaksha, J. concurring.)

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Vyasrao Hanmantrao Kulkarni And Others (Original Decree-Holders), v. Ramchandra Hanmant Kulkarni (Surety Of Original Judgment-Debtor) .

Sen, J.:—

This second appeal arises out of darkhast proceedings. Five persons obtained a decree in 1928 for possession and mesne profits in the Court of the Joint Subordinate Judge of Bijapur against certain judgment-debtors. The judgment-debtors appealed to the District Court and applied for stay of execution under O. XLI, r. 5, of the Code of Civil Procedure. Stay was granted on the present respondent's standing surety for the due satisfaction of the decree by the judgment-debtors in case the decree was confirmed or varied by the appellate Court. The decree was confirmed on appeal. The decree-holders filed three dharkasts in 1930, 1932 and 1935 in none of which execution was sought against the surety. In the present darkhast filed in 1939 execution is sought against the legal representatives of defendant No. 1 and the surety respondent. The main question raised was whether the present darkhast was in time against the surety. The trial Court came to the conclusion that as no darkhast had been filed against the surety before, and as he could not be treated as a joint judgment-debtor along with the other defendants, as held in Narayan v. Timmaya, the present darkhast was not in time as against him. This view is opposed to the view taken by the High Courts of Madras, Lucknow, Allahabad and Lahore, a view which the learned Subordinate Judge thought to be more reasonable and equitable, but being bound by the Bombay decision in Narayan v. Timmaya he held in favour of the surety and dismissed the darkhast with costs as against him. The decree-holders appealed to the District Court, and the appeal was dismissed by the District Judge relying on Narayan v. Timmaya, which was followed in Yusuf Ali v. Papa Miya.

Mr. Hungund on behalf of the appellant-decree-holders has relied on the provisions of s. 145 of the Code of Civil Procedure and s. 128 of the Indian Contract Act and contended that though the surety is not in the position of a joint judgment-debtor within the meaning of Explanation I to art. 182 of the first schedule to the Indian Limitation Act, the previous applications for execution save limitation as against the surety under cl. (5) of the said article, as held in Badr-ud-din v. Muhammad Hafiz and Gangaraju v. Subbayya and that Narayan v. Timmaya can be distinguished from the present case. Alternatively, he has argued that art. 182 does not apply, the obligation of the surety arising under s. 128 of the Indian Contract Act which can be enforced (in what manner he has not exactly specified) under the provisions of s. 145 of the Civil Procedure Code. Mr. Murdeshwar on behalf of the respondent surety relies on Narayan v. Timmaya and certain decisions of the Rangoon, Patna and Calcutta High Courts which have followed that case and contends that authority is binding for the decision on the point under consideration. He has further contended that the scope of art. 182(5) of the Indian Limitation Act is not wider than that of Explanation I thereto and that if the said Explanation does not cover the case of a surety, the surety is not also governed by cl. (5) of art. 182. The second paragraph of Explanation I to that article reads thus:

“Where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject-matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representatives as it may be made against. But, where the decree or order has been passed jointly against more persons than one, the application, if made, against any one or more of them or against his or their representatives, shall take effect against them all.”

The case of Narayan v. Timmaya was decided under the old Code of 1882 and the facts in that case were that the decree-holder Narayan had brought a suit against one Timmaya and during the pendency of the suit attached a debt due to Timmaya from one Dajiba, the attachment being subsequently raised upon one Narasinha's giving surety before the decree for payment of the amount of the said debt into Court if so ordered. After Narayan had obtained a decree against Timmaya, he filed a darkhast to execute his decree against the judgment-debtor alone, and thereafter filed several other similar darkhasts all within the time allowed. Eight or nine years after the decree he sought to make the surety liable under the decree by filing a darkhast against him and against the judgment-debtor. The trial Court dismissed the darkhast as time-barred against the surety and this order was confirmed on appeal by the District Judge. In the second appeal filed in the High Court it was contended that the surety could be proceeded against under s. 253 of the Code of Civil Procedure of 1882 (corresponding to the present s. 145) as the decree should be held to be a joint decree passed against both the judgment-debtor and the surety. It was on this one ground that it was contended that any step-in-aid of execution against the judgment-debtor would operate to keep alive the decree against the surety also. This contention was negatived and it was held that where there was a joint liability of the surety with the judgment-debtor to be deduced from the decree, the surety bond and s. 253 of the Code of Civil Procedure read together, the original decree cannot be treated as one “passed jointly” against the judgment-debtor and the surety within the meaning of Explanation I to art. 179 of the Indian Limitation Act (corresponding to Explanation I to the present art. 182). Accordingly the appeal was dismissed. Section 253 of the Code of 1882 applied only to the case of a person who stood surety before the passing of the decree. It was, therefore, more restricted in its scope than the present s. 145, though the underlying principle in both is the same. Narayan v. Timmaya was followed in Yusuf Alli v. Papa Miya, where there was no further discussion of the question involved. That case was also followed in K.S.E Mohamed Cassim v. Jamila Bee Bee, in which two persons had signed a bond in an administration suit for the sum of Rs. 15,000 to be paid by them whenever ordered by the Court and upon default by the defendant in paying into Court such sum of money as he might be required to pay in the suit by the Court. The plaintiff having obtained a decree against the defendant applied for execution against him, but she could not execute the decree and subsequently she applied for a notice calling upon the defendant to pay the decretal amount in Court. This application also proved infructuous and the plaintiff then applied for notice against the sureties calling upon them to pay the sum of Rs. 15,000 in Court. They resisted the claim inter alia on the ground of limitation. The District Court held that limitation was saved by the previous application of the plaintiff. The order of the District Court was reversed by the High Court on the point of limitation. On that point their Lordships followed Narayan v. Timmaya without referring to any other case and they remarked: “So far as we are aware that decision has never been overruled and we accept it as good law.”

The Bombay decision was also followed in Raja Raghunandan Prasad Singh v. Raja Kirtyanand Singh Bahadur. There having been previous applications against the judgment-debtor the appellant's argument was based on the language of s. 145 of the Civil Procedure Code and he contended that being deemed to be a party under that section involved being a joint judgment-debtor within the meaning of art. 182 of the Indian Limitation Act. This argument was negatived on the authority of Narayan v. Timmaya.

Mr. Murdeshwar has also relied on Raja Raghunandan Prasad Singh v. Raja Kirtyanand Singh Bahadur and Birendra Chandra v. Tulsi Charan. The case in Raja Raghunandan Singh v. Raja Kirtyanand Singh Bahadur did not raise Precise point now under consideration, and the application made to enforce the surety's bond was held by their Lordships to be within time on a proper construction of the bond itself, so that it was unnecessary to have recourse to art. 182. In Birendra Chandra v. Tulsi Charan it was held that where the sureties had made themselves liable only for a part of the decretal amount and the execution was taken only against them, the sureties not being co-judgment-debtors with the principal debtors, the execution against them did not save limitation against the principal debtors. That decision followed Kusaji v. Vinayak, and Narayan v. Timmaya was also mentioned therein with approval.

The contrary view is to be found in Badr-ud-din v. Muhammad Hafiz and Gangaraju v. Subbayya.(5) In the first of these cases the question which arose for decision was whether an application for execution of a decree by arrest of the judgment-debtor would operate to save limitation in respect of a subsequent application in which the prayer was, first, for the arrest of the judgment-debtor, and, secondly, for the arrest of two persons who had become sureties for the due satisfaction of the decree by the judgment debtor. Their Lordships decided the question in this manner (p. 744):

“The case against the appellant (one of the sureties) really admits of being stated in the form of a dilomma. Either the effect of s. 145 of the Code of Civil Procedure is to make the decree, in a case like the present, equivalent to a decree passed jointly against the original judgment-debtor and the surety or the sureties, or it has not that effect. If it has, then the case is covered by the closing words of Explanation I to art. 182 of the schedule, and an application for execution against a judgment-debtor or against any one of the sureties affords a starting point for a fresh period of limitation, even though the application next made be against a different surety. On the other hand, if the effect of s. 145 of the Civil Procedure Code be not as suggested above, then the words of Explanation (I) aforesaid have no application whatsoever to a case like the one now before us and must altogether be excluded from consideration. In that case we are driven back to the words of cl. (5) of art. 182 itself. The point we have to decide is whether the application of March 6, 1918, was or was not an application in accordance with law to the proper Court for execution of the decree, or to take some step-in-aid of execution of the decree. We cannot answer that question otherwise than in the affirmative.”

This case represented a further stage in certain execution proceedings which had come before the same Court in Muhammad Hafiz v. Muhammad Ibrahim. There an application had been made asking the proper Court to execute the entire decree by the arrest of the surety who had made himself liable for the satisfaction of the decree, and the question arose whether such an application amounted to asking the execution Court to take a step-in-aid of execution of the decree as against the principal, whose liability the surety had taken upon himself, within the meaning of cl. (5) of art. 182 of the Indian Limitation Act. The case was really converse to the one now before us. Reference was made to Narayan v. Timmaya but the case was distinguished therefrom on the ground that the Bombay case had been decided under s. 253 of the earlier Code of Civil Procedure (Act XIV of 1882) and that the Code of 1908 gave for the first time a summary remedy by way of execution against a surety who had bound himself for the due satisfaction of a decree after the decree was passed. It was held that in such a case the surety was not covered by any part of Explanation I to art. 182, and their Lordships remarked (p. 158):

“In our opinion, therefore, we are dealing with a case not contemplated by Explanation I to art. 182 of the first schedule to the Indian Limitation Act. We are driven back, therefore, to cl. (5), and we can only put to ourselves the plain question: Does an application, asking the proper Court to execute the entire decree by the arrest of the person of a surety who has made himself liable for the satisfaction of the decree, amount to asking the execution Court to take a step-in-aid of the execution of the decree as against the principal whose liability the surety had taken upon himself?”

And they answered the question in the affirmative, holding that the decree-holders were entitled to the benefit of cl. (5) of art. 182. This case was followed in Suraj Din v. Narain Rao Parameshwari Prasad. In Kishan Singh v. Prem Singh it was remarked that there was no escape from the dilemma propounded in Badr-ud-din v. Muhammad Hafiz by the learned Judges who decided that case. That was a case in which one Kesar Singh had obtained a decree against one Kishan Singh for Rs. 600 and costs and he took out execution. Two persons became sureties for the payment of the decretal amount. Thereafter an application was made for the arrest of one of the sureties, after which the original decree-holder sold his decree to two persons who transferred it to one Prem Singh. Prem Sirgh having applied seven years after the decree for execution of the decree against the judgment-debtor, the latter pleaded that the execution was barred by time. It was held that the application against the surety for his arrest was a step-in-aid of execution of the decree within the meaning of art. 182 so as to bring the application of Prem Singh within time against the judgment-debtor. Gangaraju v. Subbayya followed the view taken by the Allahabad High Court in Muhammad Hafiz v. Muhammad Ibrahim and Badr-ud-din v. Muhammad Hafiz. With regard to Narayan v. Timmaya and the decisions following it, it was observed (p. 279):

“None of the rulings cited from Bombay, Rangoon or Patna lays it down positively that the case of a judgment-debtor and his surety falls within Explanation I. They all assume without any discussion that, as the judgment-debtor and his surety are not joint judgment-debtors, an execution petition against the former will not avail to save limitation as against the latter. We agree with the Allahabad view that Explanation I does not contemplate a case of this kind at all and, therefore, that cl. (5) itself is the only provision by which this question of limitation must be determined.”

Thereafter their Lordships go on to observe that their view was in accordance with natural justice, the real meaning of suretyship and equity. It must be remembered, however, that the Privy Council has often remarked that there is no place in the application of the provisions of the limitation act for considerations of equity or of hardship to any particular party: see General Accident Fire and Life Assurance Corporation, Limited v. Janmahomed and Nagendranath De v. Sureschandra De.

If the reasoning in the Allahabad and Madras cases should appear to us to be correct, it would be possible for us to distinguish the present case from Narayan v. Timmaya on the ground that case was decided solely on the basis that a decree cannot be treated as passed jointly against the judgment-debtor and the surety within the meaning of Explanation I to art. 182, a basis not objected to by the present appellant, and on the ground that the present appeal is based on arguments which were not advanced or considered in Narayan's case.

Mr. Murdeshwar has contended that the scope of cl. (5) of art. 182 is not wider than that of Explanation I, that is, that if the Explanation is concerned with the judgment-debtors only, cl. (5) should not be regarded as applying to an application for execution against any other party, for instance a surety, in spite of the generality of the terms of that clause. In Bachchu Singh v. Radhe Lal (a case in which execution was first sought against the surety and then against the judgment-debtor) it was remarked (p. 356):

“The provisions of Explanation I are after all merely explanatory of the substantive provisions of the article. In the circumstances we think that it would not be right to use the Explanation so as to restrict the application of the Article when the case happens to be fully covered by its terms.”

This proposition has been controverted by Mr. Murdeshwar, who has contended that Explanation I really clarifies the provisions of art. 182 and cannot be held as restricting any part thereof. According to him the Explanation, if anything, enlarges the scope of cl. (5) of the article. We are unable to agree with this contention. The first part of Explanation I deals with the case of more than one decree-holders or persons in whose favour an order has been passed and the second part deals with more than one judgment-debtors or persons against whom an order has been passed. Having said in the second paragraph of Explanation I, “Where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject-matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representative as it may be made against,” the Legislature has added a proviso or qualification to the above: “But where the decree or order has been passed jointly against more persons than one, the application, if made against any one or more of them, or against his or their representatives, shall take effect against them all.” There is clearly no reference in the Explanation to a surety, and so far Narayan v. Timmaya, we may say with respect, was rightly decided. But under s. 145 of the Code of Civil Procedure where any person has become liable as surety for the performance of any decree or any part thereof, the decree may be executed against him, to the extent to which he has rendered himself personally liable, in the manner provided in the Code for the execution of decrees. There seems to be no reason, therefore, why when a decree is sought to be executed against such a surety art. 182 of the Limitation Act should not apply. The beginning of that article reads thus:

Description of application. Period of Limitation. For the execution of a decree or order of any Civil Court not provided for by art. 183, or by s. 48 of the Code of Civil Procedure, 1908. Three years, or, where a certified copy of the decree or order has been registered, six years.

It is difficult to see why, because Explanation I deals with cases of more than one decree-holders and judgment-debtors, art. 182 should be deemed to be confined to applications for execution of decrees against judgment-debtors only. That Explanation was apparently necessitated by the realisation where there were more than one decree-holders or judgment-debtors, specially where the decree distinguished portions of the subject-matter as payable or deliverable to or by such parties, doubts might arise in the interpretation of the expression “application made in accordance with law”. It does not appear that the Legislature in enacting this article had specifically in mind the case of an application for execution against a surety. The last sentence in Explanation I must clearly be read with the earlier part of the second paragraph regarding more than one judgment-debtors or persons against whom an order is passed, the expression “passed jointly against more persons than one” being in contradistinction to the expression “distinguishing portions of the subject-matter as payable or deliverable by each”. The first parts of the two paragraphs of Explanation I provide a clarification of or an exception to the general principle of cl. (5), and the second parts of the said paragraphs must be regarded, in our judgment, as amounting to provisos reaffirming that general principle in cases other than those to which the said exception would apply. We are, therefore, of opinion that the scope of the Explanation cannot be used in determining the scope of cl. (5). That being so, we think that the reasoning in the Allahabad and Madras cases applies to the present case. We do not distinguish the case from Narayan v. Timmaya on the ground that it was decided under the old Code of Civil Procedure of 1882, there being little difference in principle between the present s. 145 and the old s. 253. But we do not consider ourselves bound by Narayan v. Timmaya because that case was decided on a line of reasoning which has been accepted in the present appeal and because the argument that though Explanation I does not apply cl. (5) does was not advanced or considered in that case. That case, besides, was based on the assumption that as the judgment-debtor and the surety are not joint judgment-debtors an application for execution against the former will not save limitation against the latter.

It is not necessary for us to discuss Mr. Hungund's argument based on s. 128 of the Indian Contract Act. His further argument, based on Karuppan Chettiar v. Nagappa Chettiar, that art. 182 of the Indian Limitation Act does apply appears to us to be clearly untenable in view of s. 145 of the Code of Civil Procedure and the opening words of that article.

In the result, in view of our conclusion that the darkhast against the surety was in time, we hold the decrees of both the Courts below to be erroneous. The appeal is allowed with costs throughout and the orders of the Courts below set aside, with the result that the darkhast will now proceed against the surety.

Rajadhyaksha, J.:—I agree.

I would only add that if the contention put forward by Mr. Murdeshwar, viz. that art. 182(5) is confined in its operation only to the persons against whom execution is taken out, is correct, then there was no necessity of enacting in the first part of para 2 of Explanation I that “where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject-matter as payable or deliverable by each, the application shall take effect against only such of the said persons or their representatives as it may be made against”. For ex hypothesi, the application there contemplated is against the person against whom the decree is passed distinguishing portions of the subject-matter as payable or deliverable by him and would not therefore take effect against the other judgment-debtor. If the decree is passed severally against A directing him to deliver property X and against B asking him to deliver property Y, then the execution taken against A for the delivery of property X would, on the interpretation urged by Mr. Murdeshwar, take effect only against A and not against B. In that event there would be no necessity of the Explanation embodied in the first sentence of the second paragraph of Explanation I. It is only on the interpretation, which Mr. Murdeshwar asks us to accept, that the second part of para 2 of the Explanation can be regarded as extending the scope of art. 182(5) to a strictly limited extent. If, on the other hand, our view is correct, viz., that art. 182(5) is general in its application, and that an application made in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree or order would save limitation also against others affected by the decree, then the whole of para 2 of Explanation I would operate as an explanation or as a clarification of that clause. The first sentence there would create an exception, but the second sentence of that paragraph would re-affirm the principle of the main clause. It is true that on this interpretation the second sentence becomes unnecessary, but that sentence is clearly intended as a qualification of the rule enunciated in the first sentence of the Explanation as the word “but” indicates, and in our opinion, it affirms the principle in art. 182(5) in its application to joint judgment-debtors.

Appeal allowed.

Y.V.D

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