Durga Prasad Sahu v. Musammat Powdharo Kuer

Ross, J.:— Of these three appeals two are by the judgment-debtors and one by the decree-holder. The judgment-debtors' ground of appeal is that the execution is barred by time; and if they succeed in this contention, then it is unnecessary to deal with the decree-holder's appeal which must necessarily fail.

The facts of the case are that when a decree was being executed and a property had been attached and a claim had been made, a surety bond was given to answer so much of the decree as that in respect of which the claim failed. The claim succeeded in part and there was a doubt about the extent of the liability of the surety according to the terms of the bond; but that matter was finally decided in a subsequent execution case of 1922 when it was held that the surety was liable only to the extent of one-sixth, of the decree which was for Rs. 7,000. Notwithstanding that decision the decree-holder applied on the 31st of March, 1924, for execution of whole of the decree for Rs. 7,000 against the surety and the judgment-debtors. There was an objection that the decree could not be executed in that way; and the objection succeeded and the execution case was dismissed, the decision being affirmed by the High Court. It is now sought to rely upon that execution proceeding as saving limitation. If there was an application in accordance with law in that case, then it is conceded that the present application is within time; but if that application was not in accordance with law, it is also conceded that the present application is out of time. Therefore, the sole question for decision is whether the application of the 31st 1924, was an application in accordance with law.

It is contended on behalf of the judgment-debtors that as that was an application which could not have been granted it was not an application in accordance with law; and several cases were cited in support of the argument. In Pindarinath Bapuji v. Lilachand Hatibhai, the application was for a relief which was not given in the decree; and it was held that such an application could not be considered as an application to execute or further the execution of the decree in any way and, therefore, would not save limitation. It was pointed out that there may be cases in which an application might be incorrect in some respects and yet would be an application furthering execution; but where the application is not one which furthers execution, it is not available to save limitation. In Munawar Hussain v. Jani Bijai Shankar, the matter was put in this way that “applying in accordance with law” means applying to the Court to do something which by law that Court was competent to do. It does not mean “applying to the Court to do something which, either to the decree-holder's direct knowledge of facts or his presumed knowledge of law, he knew that the Court was incompetent to do”. That was a case where the application had been for the sale of non-hypothecated property in execution of a mortgage decree before exhausting the mortgaged property and that decision was approved by the Calcutta High Court in Purna Chandra Mandal v. Radha Nath Dass. That was a case where an invalid application was made under section 90 of the Transfer of Property Act; and it was held that it did not save limitation for the execution of the decree for sale, on precisely the same ground. The cases that are cited on behalf of the respondent are all cases of defects of a more or less formal nature in the application itself, such as an application by one of two joint decree-holders as in Jogendra Prasad Narayan Sinha…Defendant v. Mangal Prasad Sahu…Plaintiff ., or a case where the application referred to a decree which was not under execution but which was connected with the decree under execution as in Amrit Lal v. Murlidhar, or a case where the application had been against the widow of the judgment-debtors who was not in possession of his estate and was not the right person to be proceeded against—Ganeshwar Singh v. Than Mal. These are cases in which relief could be given if a formally correct application was made. Here the application was for a relief which it had been decided by the High Court could not be given and which was entirely outside the law. This case falls, in my, opinion, within the principle of the decisions which were cited by the appellants; and the application of the 31st of March, 1924, was not available to save limitation.

Appeals nos. 218 of 1928 and 48 of 1929 must, therefore, be allowed and the order of the Court below set aside and the execution case dismissed with costs throughout. Appeal no. 206 of 1928 is dismissed but without costs. The cross-objection is also dismissed.

Chatterjee, J.:— I agree.

Appeal nos. 48 and 218 allowed.

Appeal no. 206 and cross-objection dismissed.