Satish Chandra Chaudhuri v. Girish Chandra Chakravarty .

Teunon, J.:— In this appeal the question is, whether an application for execution is barred by limitation. It appears that the respondent brought a suit on a hand-note against two persons, defendant 1, the father, and defendant 2, the son. His suit as against 1 was dismissed with costs, and as against defendant 2 was decreed with costs. This was on 30th September 1912.

2. Against the order dismissing the suit against defendant 1 plaintiff appealed.

3. Defendant 2 was no party to that appeal and did not himself appeal against the decree that was made against him. The plaintiff's appeal against defendant 1 was dismissed on 23rd May 1914. The plaintiff decree-holder then applied for execution of his decree against defendant 2 on 19th May 1917. That application was dismissed on default of prosecution, without service of notice on defendant 2. Then followed the present application on 8th January 1918. This application is within three years from the first application, dated 19th May 1917, but the contention of the judgment-debtor, defendant 2, is that the first application was itself barred by limitation. The question in the appeal then is whether time runs from the date of the decree against defendant 2, made in the Court of first instance on 30th September 1912, or from 23rd May 1914, that is, the date of the decree in the appellate Court finally dismissing the plaintiff's claim against defendant 1. The question is not free from difficulty. In support of his contention that time runs from the date of the decree of first Court, the appellant before us, the judgment-debtor, cites the cases Christiana Benshaun v. Benarasi Prosad (1), Lokenath Singh v. Gaju Singh (2) where Christiana Benshawn v. Benarasi Prosad is cited or referred to with approval: Umesh Chandra Roy v. Akrur Chandra Sikdar (3) and also Hur Proshad Roy v. Enayet Hossain (4), and the Full Bench in Gopal Chander Manna v. Gosain Das Kalay (5). But the cases cited on behalf of the appellant can be distinguished from the present case, while the cases Kristnama Chariar v. Mangammal (6) and Ari Chetty v. Theerthamalai Chetty (7) support the respondent. So do certain observations to be found in the Full Bench case Gopal Chunder Manna v. Gosain Das Kalay . The case of Abdul Rahiman v. Maidin Saiba (8) has also been referred to, but that is the case of a mortgage. It may further be observed that, if the appeal preferred by the plaintiff had resulted differently, the decree against defendant 1 would have been modified, inasmuch as it would then have become a decree under which defendants 1 and 2 would have been jointly and severally liable. To the result, we dismiss this appeal with costs.

Beachcroft, J.:— agree.

V.B/R.K

4. Appeal dismissed.