1. This is an appeal giving rise to a somewhat important point of limitation, and the dates are important. The appellant is the judgment-debtor, the wife of a certain Zamindar, against whom a suit was filed which resulted in a decree on the 10th April, 1911, subsequently confirmed on appeal to Lower Appellate Court on 28th March, 1912. The decree-holder applied on 15th August, 1912, for execution and attempted to attach the Zamindari properties. Thereupon the defendant raised funds and satisfied the decree on 14th July, 1913, and the execution petition was dismissed. An appeal from the decree of the Lower Appellate Court, dated 28th March, 1912, was preferred to the High Court which, by its decree, dated 23rd April, 1914, introduced a modification which has given rise to the question at issue as in the second appeal the High Court modified the decree by adding the words "excluding the Zamindari." After the High Court decree the 1st defendant filed I. A. No. 19 of 1916 for refund of the amount paid in 1913 in satisfaction of the decree on the ground that it was realized by the decree-holders by proceeding against Zamindari properties which were not liable under the modified decree of the High Court. The order of refund was passed on 30th March, 1918, and on 1st November, 1918, the appellant got back the amount she paid in satisfaction of the decree, i. e., the whole amount was refunded. On 22nd April, 1920, the decree-holders presented the present application for execution against the assets of the 1st defendant's husband; and the question is, is this application in time? Both the Lower Courts have held it is.

2. We have been referred to a number of cases on the subject which may be said to fall into two main categories: (1) The class of case which regards a subsequent proceeding in execution as a continuation of a prior one a doctrine apparently introduced in order to obviate the provisions of the Limitation Act of 1877, Section 15, which could not be applied to applications but was only applicable to suits; and (2) the other class of case recognises that Article 182 of the present Limitation Act is not exclusively to be applied to execution applications but there may be certain instances in which it would be right and proper to apply Article 181. The effect of this class of cases would be to give a fresh starting point from the time when the right to apply accrues. Another possibility is suggested by the learned vakil for the appellant, namely, that the time during which the decree-holders were prosecuting their original execution application should be excluded from computation. I can, however, find no authority for this unless it can be construed as part of what may be called the continuation theory. A quite possible view is that down to 1918 the decree was in fact non-executable by the decree-holders as they had been paid in full. I am in favour of regarding 1918 as a fresh starting point of limitation by the application of Article 181. That Article 181 can be applied to execution matter was established in Rungiah Goundan and Co. v. Nanjappa Rao (1903) ILR 26 M 780 (PC), which held that Article 179, i. e., Article 182 is not exhaustive of applications for execution of decrees and that it is not the law that Article 178 (i. e., Article 181) cannot be applied to any application for execution of any decree. See also the Privy Council case in Rameshwar Singh v. Homeshwar Singh (1920) 40 MLJ 1 (PC), where their Lordships applied Article 181 holding that Article 182 did not apply inasmuch as the decree in question was not under certain circumstances capable of being enforced. A very similar case to the present is the case referred to by the learned District Judge, Ramineedi Venkata Appa Rao v. Lakkoju Chinna Ayyanna (1906) ILR 30 M 309. There the sale in execution was set aside, and the decree-holder was ordered to refund and it was held that on the decree-holder subsequently applying to execute his decree such application is governed by Article 178, i. e., Article 181, when time began to run against him from the date when he is ordered to refund the purchase money when alone his right to apply accrued. The Court there was obviously pressed by the difficulty of avoiding Article 179, i. e., Article 182, but they were equally pressed by the injustice that would accrue if the opposite view were taken. Two older authorities can be cited, one in Issurree Dassele v. Abdul Khalak (1878) ILR 4 C 415 which is an example of what may be called the continuation theory. There the former execution proceedings were struck off the file. Subsequently a refund was ordered, and the plaintiff 18 or 19 months after applied to execute his decree. The High Court held that under the circumstances the application should be considered as an application to continue the old proceedings. Similarly in Kalyanbal Dipchand v. Ghanasham Lal Judanathji (1880) ILR 5 B 29 the learned Judges were pressed by the fact that Section 15 of the Limitation Act of 1877 was in terms applicable to applications. They held that if Article 179 applied "the most monstrous injustice would ensue," and construed the application as an application to continue the former proceedings.

3. An objection has been advanced to regarding the present case as a continuation from the fact that a different property, i. e., non-Zamindari property, is now to be proceeded against, whereas the decree was admittedly previously satisfied from the Zarnindari property. The answer to that objection appears to me to be twofold, namely, that this is the first application to execute the High Court decree as such, and therefore the decree-holders are perfectly justified in proceeding against any property of the appellant which is non-Zamindari property and secondly, it has been held in Gnanendra Kumar Rai Chowdhri v. Rishendra Kumar Rai Chowdhry (1918) 22 CWN 540 that the filing of a supplementary list of properties may be taken as part of the original application and that the decree-holders need not be confined to the properties they had originally specified. See also the remarks of Seshagiri Aiyar, J., in Rajah of Karvetnagar v. Venkata Reddi (1915) ILR 39 M 570 at 573 : 29 MLJ 96

" the fact that the decree-holder moved the Court only for a particular remedy open to him cannot lead to the inference that he was not entitled to ask that his decree be satisfied by other means which the law enables him to adopt."

Also in Mohini Mohan Sircar v. Navadip Chandra Biswas ( 1918)47 IC 911, a decision of the Calcutta High! Court, it was held that when on an application for execution made in accordance with law execution cannot be successfully taken against the property specified by reason of causes for which the decree-holder is in no way responsible he should not be confined to the properties first specified and it is open to him to ask the Court to proceed against other properties specified in his supplementary list. There the first application proved ineffective against the moveables of the judgment-debtor as the result of proceedings taken by the latter. His subsequent application was to attach the immoveables. Here in the present case the payment in discharge of the original execution petition was of course made by the judgment-debtor, and I think it would be unfair to hold that this must be held to be a matter for which the decree-holder is responsible. Further his prior execution proceedings proved ineffectual owing to the modification of the decree by the High Court which is certainly outside the control of the decree-holder. Several other authorities were cited to us. But I do not think it necessary to review them all. I think the case may fall under either of the theories that I have set out above. But it seems to me that some of the cases have proved to an extreme length on what I have called the continuation or revival theory, and speaking for myself I think it more satisfactory to rest the case on the application of Article 181 of the Limitation Act. It is clear that in either case the application is within time. In my opinion, therefore, this second appeal must be dismissed with costs.

Wallace, J.

4. I agree with my learned brother's proposed order, but would like to add my own view of this case. I think the principle to be applied is the general principle that a decree or an application for execution which cannot be executed cannot be time-barred. This principle has with respect to questions of limitation under Section 48 of the Civil Procedure Code been applied in a Full Bench case of this Court in Aiyasamier v. Venkatachala Mudali (1916) ILR 40 M 989 (FB). It is true that a later Privy Council case which is very briefly stated contains no reasons and which is not reported in the authorised rulings. But in Kulna Loan Co. v. Jnanendra Nath Bose (1917) 22 CWN 145 (PC) seems in conflict with the view taken by the majority of the Full Bench. Narhar Raghunath v. Krishnaji Govind (1912) ILR 36 B 368 is another case in point on this portion of the discussion.

5. But coming to the application of the principle to Article 182 of the Indian Limitation Act, there is a Privy Council case in Rameshwar Singh v. Homeshwar Singh (1920) 40 MLJ 1 (PC), a later decision than the Kulna Loan Co. v. Jnanendra Nath Bose (1917) 22 CWN 145 (PC) in which the principle was enunciated that Article 182 does not apply to an execution petition when the decree was not at the time capable of being enforced. The decree in that case only became enforceable in a certain contingency which might or might not have happened. It did happen and the Privy Council held that limitation began to run, not from the date of the decree which would make Article 182 applicable, but from the date of the happening of the contingency which made the decree executable, and that Article 181 applied. The principle is enunciated there in wider terms than previously. It had been held in several cases that the immediate non-executability of a decree must be inherent in the decree itself, that is, that the mere reading of the decree would show that it was unexecutable at once. But the decree in Rameshwar Singh v. Homeshwar Singh (1920) 40 MLJ 1 (PC) did not on the face of it imply any such non-executability since, for all that the Court passing the decree knew, the judgment-debtor might be already in possession of Janeshwar's property, and therefore the decree would be enforceable as soon as passed. The general principle laid down by the Privy Council is that, in order to make a provision of the Limitation Act, namely, Article 182, apply, the decree sought to be enforced must have been in such a form as to render it capable " in the circumstances " of being enforced. I would stress the words " in the circumstances " as implying that the Court is to be guided by the circumstances of the case in deciding whether the decree could or could not have been enforced at once, that is, whether any right to execute it had or had not accrued. Part of the circumstance which their Lordships considered relevant in that case was whether or not the decree-holder was responsible for the delay which had taken place in giving effect to his title, that is, his right to execute.

6. Now when the decree-holder in the present case got his final decree as amended by the High Court, the decree he had obtained in the Lower Appellate Court was already satisfied and would remain satisfied unless the judgment-debtor chose to recover by appropriate proceeding the amount already paid. In my view the decree-holder could not, at least until the judgment-debtor demanded restitution, apply for execution of the amended decree. Until then it was not a decree capable of execution and Article 182 would have no application. Article 181 must therefore apply. On what date then did the right to execute accrue " in the circumstances " and is the delay in filing the execution petition due to any laches or default on the decree-holder's part? It might fairly be contended that the decree-holder's right accrued the moment that he was aware that the judgment-debtor was demanding restitution. The decree-holder was then in that view bound to hand over the amount obtained, and, as the High Court had finally determined, improperly obtained, in satisfaction of the decree finally amended, as he had no legal right to retain that amount any longer. His right to execute the amended decree would therefore accrue from the date on which he ought to have handed over the sum improperly obtained, just as if the restitution was due to a stranger whose money he had wrongfully acquired by improper execution proceedings against him.

7. Analogous cases are cases in which a decree-holder who has sued to remove an obstruction which barred the execution of the decree has failed to remove that obstruction. It has been, held that the period during which he was pursuing that infructuous proceeding would not be excused in his favour. [Sec Shivram Chintaman v. Sarasvatibai (1894) ILR 20 B 175 and Khair-un-nissa v. Gauri Shankar (1881) ILR 3 A 484]. The case in Sunder Lal v. Banarsi Das (1918) 45 IC 531 bears some resemblance to the present, but it does not appear from the facts whether the decree-holder's final execution petition of 13th February, 1916 was within three years of the decision in favour of the judgment-debtors under the decree which had been attached and therefore within three years of the time when the right to have refunded the money arose. The case in Ramineedi Venkata Appa Rao v. Lakkoju Chinna Ayyanna (1906) ILR 30 M 209 is almost on all fours with the present and there it was held that where an execution sale is set aside at the instance of the judgment-debtor and the decree-holder has to refund the money to the judgment-debtor time begins to run against the judgment-creditor not from the date of the demand by the auction-purchaser but from the date when the decree-holder is first compelled by order of Court to refund the money to auction-purchaser. Following this decision I think must hold in this case in agreement with my learned brother that the right to apply accrued on the date when the judgment-creditor was ordered by the Court to refund the money by way of restitution to the judgment-debtor.

8. I should just like to say a word or two on the argument put forward at some length before us that the execution petition should be treated as a revival or a continuation of the execution petition under the decree before amendment, which, being satisfied, was dismissed. It seems to me difficult to apply such a principle to the present case. From the mass of case-law, not always very consistent, which has grown upon this subject, I think the following general principles emerge : Firstly, Article 182 assumes that the decree is capable of immediate execution and does not apply if it is not in such a case Article 181 applies; Article 182 is not exhaustive;[see Chhedi v Lalu (1902) ILR 24 A 300 and Rangiah Goundan and Co. v. Nanjappa Rao (1903) ILR 26 M 780 (PC)]; and where a decree is immediately capable of execution an execution petition prima facie after time may be treated as a revival or continuation of a previous execution petition when the decree-holder has in fact been diligent and put in such a petition. Secondly, such an execution petition or application may be treated as a continuation or revival of the former application closed or even dismissed; but if the decree-holder has not been diligent [see Langtu Pande v. Baijnath Saran Pande (1906) ILR 28 A 387]or if he has sought to be rid of an obstruction in execution and failed [see Khair-un-nissa v. Gauri Shanker (1881) ILR 3 A 484 and Shivram Chintaman v. Sarasvatibai (1894) ILR 20 B 175] or if he does not seek for the same relief as in the previous execution petition, [see Feemsami v. Athi (1884) ILR 7 M 595 and Krishttaji Raghunath Kothavale v. Anandrav Ballal Kolhalkar (1883) ILR 7 B 393 but later cases noted by my learned brother take a wider view] then it cannot be treated as a revival or continuation. Thirdly, an execution petition, if treated as a revival or continuation of the former one, is governed in the matter of limitation by Article 181 and not 182. On this point there is a mass of authority. The principle is stated, although the actual article applicable is not specified in the Privy Council case in Qamar-ud-din Ahmad v Jawahir Lal (1905) ILR 27 A 334 (PC) and Sasivarna Thevar v. Arulanandam Pillai (1891) ILR 21 M 261 : 8 MLJ 18. Other reported cases which definitely lay down which article is applicable are the Full Bench case in Suppa Reddiar v. Avudai Ammal (1904)ILR 28 M 50 : 14 MLJ 401 (FB), Chalavadi Kotiah v. Poloori Alamelamma (1907) ILR 31 M 71 : 18 MLJ 46 , Ghulam Nasiruddin v. Hardeo Prasad (1912) ILR 34 A 436 and other cases.

9. Applying these principles to the present case it would be seen that, even if the application is to be treated as to the continuation or revival of the previous execution petition, the article applicable is 181 and not 182; and that article prescribes three years from the date when the right accrued, that is, the right to revive or continue the execution proceedings and to put in the application for a continuation or revival; so that this plea, even if allowed to the appellant, takes the case no further. This case has to be governed by the considerations already laid down and on the decision of the question when his right to apply occurred under Article 181.

10. I therefore agree with the order proposed by my learned brother.