Amir Ali Judgment-Debtor No. 3, v. Harish Chandra Das And Anr. Decree-Holders,

The Judgment of the Court was as follows:—

The only question involved in this case is whether the execution of the decree is barred under sec. 48 of the Code of Civil Procedure. The decree was obtained against several persons including the present Appellant who was Defendant No. 3 in the trial Court on the 7th July 1911. There was an appeal against that decree by two of the Defendants in the case, the present Appellant not being a party to it either as Appellant or Respondent. Tire appeal of the Defendants Nos. 1 and 2 was dismissed on the 23rd December 1912. Several applications for execution of the decree had been made by the Plaintiff decree-holder for costs against the judgment-debtor. But the present application was made on the 13th July 1923, that is, more than 12 years after the decree passed against the Defendants to which Defendant No. 3, the present Appellant, was a party, but less than 12 years from the decree of the Appellate Court of the 23rd December 1912, to which the present Appellant was no party.

The contention on behalf of the Appellant is that if the decree-holder is executing the decree of the Appellate Court of the 23rd December 1912 it cannot be executed as against him because he was no party to the decree; but if it was the decree of the 7th July 1911 which the decree-holder seeks to execute, then it is barred by limitation under sec. 48, C.P.C

It seems to us that the contention of the Appellant should be accepted. It is contended on behalf of the Respondent that the fact that there was an appeal against the decree of the 7th July 1911 gives him the right to execute the decree as against Defendant No. 3 counting the period of limitation from the date of the decree passed by the Appellate Court. Reliance has been placed on behalf of the Respondent in the case of Loke Nath Singh v. Guju Singh . But that case proceeded upon the question whether the execution of the decree was barred or not having regard to the provisions of Art. 182 of the Indian Limitation Act. That case is not applicable to the present question as it depends on the provisions of sec. 18, C.P.C

The only ground on which the Respondent can maintain his plea that the execution of the decree is not barred by limitation is that the decree of the trial Court had been merged in the decree of the Court of Appeal below. But the difficulty in his way is that the present Appellant was not a party to the appeal and consequently no order could have been made as against him by the Appellate Court by its decree. It cannot therefore be said that the decree of the trial Court was merged in the decree of the Appellate Court.

The appeal therefore must succeed and the order of the Court below directing execution to proceed as against the Appellant who was Defendant No. 3 in the original suit must be set aside.

The Appellant is entitled to his costs in all Courts. We assess the hearing-fee at two gold mohurs.

J.N.R