1. This is an appeal from an order refusing to prepare a final decree in a contribution suit. A decree for about Rs. 80,000 was passed by the Additional Subordinate Judge of Basti on 7th May 1917, for recovery of the amount by sale of the six villages mentioned therein. This decree was drawn up on a printed form applicable to decrees under O. 20, Rr. 6 and 7 of the CPC, and not on the form prescribed for a mortgage decree under O. 34, R. 4. Two sets of defendants appealed to the High Court but the plaintiff did not file any appeal or cross-objection. One of these appeals was allowed and the other was dismissed and the decree of the Additional Subordinate Judge was modified under an order of this Court dated 7th June 1920. The form of the decree was affirmed by the High Court and the period fixed for payment in the Court below was not extended. Perhaps misled by the form on which the decree had been prepared in the Court below, the decree-holder treated it as a simple money decree and applied for it Execution to the Court of the Subordinate Judge of Basti on 23rd December 1920. By this time the Court of the Additional Subordinate Judge had been abolished. The property sought to be attached being ancestral, the execution was transferred by the Court to the Collector on 8th November 1921. In the Collector's Court objections were raised by some of the judgment-debtors that the proper course for the decree-holder was to apply for the preparation of a final decree and not to execute the preliminary decree.
2. From 20th May 1923 till 19th June 1923 (both days inclusive), the civil Courts were closed for the long vacation. On 20th June 1923, the decree-holder filed his application for the preparations of a final decree in the Court of the Additional Subordinate Judge of Basti. An Additional Court had then been re-established. On 4th August 1923, the Additional Subordinate Judge passed an order holding that the application had not been filed in the proper Court and directing that it should be returned for presentation to that Court 5th August was a Sunday and on 6th August, the applicant took back his application and re-presented it to the Court of the Subordinate Judge at Basti on the same day. In the Court below the applicant sought to get the time extended by claiming the benefit of the time spent by him in prosecuting his application for execution from 23rd December 1920 to 8th November 1921, also of the period of the long vacation, viz., from 20th May to 19th June 1923 as well as the time spent by him in prosecuting his application in the Court of the Additional Subordinate Judge, viz., from 20th June 1923 to 6th August 1923. The learned Subordinate Judge has rejected the application as being timebarred. He has held that the applicants were prosecuting the application in the Court of the Subordinate Judge in good faith but even allowing for the exclusion of that time the application is beyond time.
3. The argument advanced on behalf of the appellants is that if their application had been filed in the Court of the Subordinate Judge which was the proper Court on 20th June 1923, instead of being filed in the Court of the Additional Subordinate Judge it would have been in time because they were entitled to the period of the long vacation under Section 4 of the Lim. Act. It is then argued that inasmuch as they are entitled to an exclusion of time from 20th June 1923, to 6th August 1923 when the application was pending in the Court of the Additional Subordinate Judge, their application filed on the next available day was in time. This argument is obviously fallacious. S. 4 does not provide that the whole period of the long vacation should be excluded from the period fixed by the Act. All that it lays down is that if on the date on which the period prescribed for an application expires the Court is closed, the application may be preferred on the day that the Court reopens, that is to say, that the applicant can take advantage of the Court being closed and may file his application on the reopening day. On the other hand Section 14 of the Lim. Act, allows an exclusion of the time spent in prosecuting another application for the same relief and this time has to be excluded from the period of limitation prescribed for that application.
4. Admittedly the application for the preparation of a final decree is not an application for the execution of a decree but an application which is governed by Article 181, Lim. Act. The period prescribed is three years. The applicant is therefore entitled to add 48 days (i.e, the period from 20th June 1923 to 6th August 1923) to three years, but these three years should be counted from the date when limitation began to run against them for this application. So far as most of the defendants are concerned the decree of the High Court dated 7th June 1920, gave a fresh start to the decree-holders. Even therefore if three years and 48 days are counted from that date the time expired some time about 25th July 1923. That did not fall within the long vacation. It therefore follows that the plaintiffs are not entitled to the benefit of S. 4. To allow them to take advantage of the provisions of both the sections would be to tack on the long vacation to the period spent in prosecuting the previous application. The provisions of S. 4 can be available only when the application in the proper Court is filed on the reopening day.
5. In this case unfortunately the application was not filed in the proper Court on the reopening day. This view has been upheld consistently by the Madras High Court and we may in this connexion refer to the case of Mira Mohidin Rowther v. Nallaperumal Pillai . [1913] 36 Mad. 131 and the case of Ummathu v. Pathumma . A.I.R 1921 Mad. 654. The Bombay High Court in the case of Basvannappa v. Rrishnadas . A.I.R 1921 Bom. 379 has taken a contrary view on the ground that it would be inequitable not to allow the benefit of the vacation which preceded the period which has to be excluded. With great respect we would say that there is no question of equity in cases governed by the Limitation Act. The view of the Madras High Court has been followed by this Court in a short judgment reported in Makund Ram v. Ramraj . [1916] 14 A.L.J 310. The Bombay case has been recently reviewed and dissented from by the Madras High Court in Govindasami Padayachi v. R. Sami Padayachi . A.I.R 1923 Mad. 114.. Even therefore if we assume that the application for the preparation of the final decree had been prosecuted with due diligence and in good faith the application is beyond time.
6. The second point urged is that the time spent in prosecuting the application for the execution of the decree, viz.: the period from 23rd December 1920 to 8th November 1921, should also be excluded. This contention is untenable. S. 14, sub-Cl. 2, can apply only when the previous proceeding is prosecuted for the same relief. The relief claimed in the execution of the decree was the realization of the decretal amount by sale of the property mentioned therein. The prayer in the application for the preparation of the final decree is not for execution but for the preparation of the final decree which would be the last decree capable of execution the two reliefs being different, S. 14, sub-Cl. 2 is not applicable.
7. It is next contended that the application was properly filed in the Court of the Additional Subordinate Judge at Basti because the decree had been passed by the Additional Court and not by that of the Subordinate Judge. As noted by the Court below the Court of the Additional Subordinate Judge which was in existence when the decree was passed subsequently came to be abolished and all its work was transferred to the Court of the Subordinate Judge. A new Additional Subordinate Judge was subseqnently seat to Basti but the execution cases which were pending in the Court of the Subordinate Judge were not transferred to this Additional Subordinate Judge's Court. When the Court which has passed a decree is abolished, it is the Court to which its business is transferred which is competent to execute the decree: Section 17 of the Bengal, N.W.P and Assam Civil Court Act, and Section 150 of the CPC. It is thus clear that the application was wrongly filed in the Court of the Additional Subordinate Judge of Basti and was rightly returned for presentation to the proper Court.
8. The last point urged on behalf of the appellants is that it is the appellate Court's decree which is the last preliminary decree and in that decree the first Court's decree must be deemed to have become merged. This point must be conceded: vide Fitzholmes v. Bank of Upper India Ltd. . A.I.R 1927 P.C 25. It is then argued that O. 34, R. 4, sub-Cl. 1, requires that a decree in terms of R. 2, sub-Cl. C, fixing a date within six months for payment should be passed. It is accordingly contended that it was the duty of the appellate Court when it affirmed the decree of the first Court to fix a fresh date for payment and that time cannot begin to run unless such a day has been fixed and has expired. This contention is not sound. The appellate Court is neither bound to fix a period of six months for payment after its decree, nor is it bound to extend the time fixed by the Court below. In most cases when the decree is affirmed and the appeal is dismissed the time is not extended unless specially asked for in the judgment-debtor. This Court did not vary the time fixed for payment by the Court below. The appellant is therefore entitled at best to calculate his period from the date of the appellate Court's decree, viz., 7th June 1923. It may further be pointed out that some of the defendants, viz., respondents 20 to 26 had not been impleaded in the two appeals which were pending in the Court and in which the decree was varied. So far as these defendants are concerned time began to run against them from the date of the first Court's decree to which alone they were parties, viz., 7th May 1917. It is thus clear that the present application was hopelessly beyond time and must be dismissed. The objections raised by the various defendants were substantially the same, viz., that the application was barred by time. We direct that the applicant should pay one set of costs to all the respondents. It is to be noted that the counsel for the respondents state that respondent 52 died more than a year ago and his legal representatives have not been brought on the record. The appeal is accordingly dismissed with costs.
S.N/R.K
9. Appeal dismissed.