Baroda Kinker Chowdh... v. Nabin Chandra Dutta ...

The question for determination in this second appeal is whether the application, dated the 27th March 1908, for the execution of the decree, bearing date the 30th January 1905, is barred by the rule of three years prescribed by Article 179(4) of the Second Schedule of the Limitation Act, XV of 1877.

The lower Courts have differed as to the construction of the article, and the arguments before us have been directed to a variety of reported cases some only of which we think it necessary to mention.

The facts are that the decree was one for possession of land against one set of Defendants, for possession through tenants against another set, and for costs and mesne profits against all the Defendants.

The decree-holder proceeded to recover costs against some of the Defendants on the 18th August 1905, but he did not at that time proceed against the Defendants Nos. 2 and 11 who are the Appellants in this Court.

The Munsif thought that inasmuch as the decree-holder had executed his decree piecemeal, and had not proceeded against the Defendants Nos. 2 and 11, the period of limitation running against these Defendants must be reckoned from the date of the decree and not from the 18th August 1905.

The District Judge, apparently, because no authority was cited for the view held by the first Court, has held otherwise, and permitted execution to proceed against all the judgment-debtors.

The argument turns on the meaning of the words—“in accordance with law” in Article 179(4). Was the application to realise costs from some only of the judgment-debtors in accordance with law? We entertain no doubt that it was in accordance with law. As observed in Balkishen Das v. Bedmati Koer(1), the words “in accordance with law” relate to the execution of the decree and it cannot be said that a person who executes a decree with the permission of the Court—a permission which the Court is expressly empowered to give—is not doing so in accordance with law. It was stated in another case of this Court, Radha Kishen Lall v. Radha Pershad Sing, that there was no provision in the Code of Civil Procedure (Act XIV of 1882) directing that an application for execution must be, when possible, with reference to the entire decree. In Nepal Chandra Sadookhan v. Amrita Lal Sadookhan, the learned Chief Justice called attention to the undesirability of executing a decree piecemeal, but, nevertheless, the execution was permitted to proceed. In a case the facts of which very nearly resemble those of the case with which we are now dealing, we refer to the case of Subramanya Chettair v. Alagappa Chettiar, Sir Arnold White, C.J, and Mr. Justice Miller relied on para 2, Exp. 1 in connection with Article 179 of Sch. II of the Limitation Act. It appears from that explanation that 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.

Now, the application to realise cost was undoubtedly made against some only of the judgment-debtors; but, in virtue of this explanation, it must be deemed to have taken effect against the Defendants Nos. 2 and it also.

That being so, and if the application, as we have already observed, was in accordance with law, the plea of limitation cannot prevail in favour of these Defendants.

Turning to the words of the Code (Act XIV of 1882), we find that when an application for execution of a decree is made, it must fulfil the conditions of sec. 235; and sec. 245 further provides that if any of the requirements of secs. 235, 236, 237 and 238 have not been complied with, the Court may reject the application, or may allow it to be amended then and there, or within a time fixed by the Court, and if the application be not so amended, it shall be rejected. It appears to us that this is the true meaning of the words “in accordance with law.” If the application is in accordance with those provisions of the Code, and the Court permits execution to proceed, then, as we have already observed in connection with the case in Balkishen Das v. Bedmati Koer, the execution must be deemed to bind even those of several joint judgment-debtors who were not actually made parties to that particular execution case.

We may add to make our meaning quite clear, that sec. 245 of the Code of Civil Procedure (Act XIV of 1882) is, in its terms, the same as the corresponding section in the Act of 1877 which was the Code in contemplation when the Limitation Act of 1877 became law.

For these reasons, we think the judgment of the lower Appellate Court is correct and must be sustained.

The appeal is dismissed with costs three gold mohurs.

H.C

Appeal dismissed.