1. These appeals raise a question of limitation. The appellant in C.M.A. No. 463 of 1933 is the holder by assignment of the decree in O.S. No. 13 of 1923 on the file of the Sub-Court of Trichinopoly. That suit was filed by the Imperial Bank of India against two defendants Narayan Chettiar and Vadivelam Pillai. A decree was passed in favour of the Bank by which the plaintiff was to proceed in the first instance against the first defendant and then against both the defendants if necessary. The Imperial Bank of India as the decree-holder filed E.P. No. 126 of 1923 praying for the arrest of the first defendant. In a later E.P. No. 157 of 1923 filed on the 13th August, 1923 the Bank applied for attachment of the moveables of the second defendant and an order for attachment was made but this petition was not pressed.
2. The present appellant is the sister's son of the second defendant and he filed E.P. No. 201 of 1923 for recognition of the assignment to him of the decree and for the arrest of both the defendants. This was contested by the first defendant who alleged that the petitioner was only a benamidar for the second defendant. It was not objected to by the second defendant and on 17th March, 1924, the Court recognised the assignment and ordered the arrest of both the defendants. The petition however was dismissed for non-payment of batta on 28th March, 1924. On the 29th of July, 1924, the first defendant Narayanan Chettiar filed an insolvency petition in the District Court of Ramnad and was adjudicated insolvent shortly afterwards. During the pendency of these insolvency proceedings, the assignee decree-holder without the leave of the Insolvency Court put in E.P. No. 236 of 1926 on the 29th September, 1926, in which he prayed for the arrest of the first defendant. After notice to the first defendant an order was passed for his arrest on 29th November, 1926, but no batta was paid and this was dismissed on 21st November, 1926. The first defendant obtained an order of discharge in insolvency on 13th December, 1930, and the Execution Petition with which this appeal is concerned was filed on the 31st August, 1932. In this petition the assignee-decree-holder prays for exeution against the assets of the second defendant, Vadivelam Pillai, now deceased in the hands of his legal representatives - respondents 2 to 5 herein.
3. Since this petition was presented nearly six years after the order dated 21st December, 1926, dismissing E.P. No. 236 of 1926 it was incumbent upon the petitioner to show that the application was not barred by limitation. He alleged several reasons why the petition was not barred. He claimed that on 5th September, 1929, the first defendant had sent him a letter acknowledging his debt. He alleged also that in the insolvency petition the first defendant had acknowledged his liability under the decree. Therefore he said that the petition was not barred by limitation and he referred to Sections 19 and 20 and Article 182 of the Limitation Act.
4. The objections on behalf of the respondents were based on several grounds. It was contended for the respondents that the insolvency proceedings could not save limitation. It was also alleged that the letter of the 5th September, 1929, was a forgery and that the second defendant's legal representatives could not be bound by it. It was also alleged that the second defendant had never acknowledged such a debt at any time. It was also said that Sections 19 and 20 of the Limitation Act had no application to that execution application and so it was barred by limitation.
5. A further ground of some importance alleged in the counter of the respondents was that the assignee-decree-holder himself when he filed E.P. No. 236 of 1926 on the 29th September, 1926, put in a Memorandum exonerating the second defendant from liability under the decree. In pursuance of this it was alleged that the Court on the 30th September, 1926, had passed an order " recorded as prayed for ". Therefore the respondents contended that the petitioner could not have any remedy against them.
6. The assignee-decree-holder on becoming aware of the statements made by the respondents in the counter alleged that the Memorandum said to have been filed in Court on 29th September, 1926, was a forgery, that he never exonerated the second defendant from liability under the decree at all and he prayed that he should be allowed to execute the decree against the second defendant's legal representatives ignoring, or if necessary setting aside, the Court's order dated 30th September, 1926. This was E.A. No. 636 of 1932 which is the subject matter of C.M.A. No. 484 of 1933. Upon the Execution Petition the learned Subordinate Judge has found that it was barred by limitation and on E.A. No. 636 of 1932 he has found that the Memorandum dated 29th September, 1926, was a forgery and that the order dated 30th September, 1926, should be set aside, and he has set aside that order occordingly, and the respondents have preferred C.M.A. No. 484 of 1933 from that order.
7. Mr. S. Srinivasa Iyengar on behalf of the appellant practically abandoned all the contentions on the point of limitation which had been raised on behalf of the decree-holder before the learned Subordinate Judge. But he did attempt to contend that E.P. No. 236 of 1926 was a petition in accordance with law, although it had been filed after the institution of the insolvency proceedings against the first defendant and without the leave of the Insolvency Court. This is clearly contrary to Section 28(2) of the Provincial Insolvency Act and the decision in Swami Kotayya v. Venkata Rang a Rao (1934) 68 M.L.J. 148 is quite clearly to the effect that the execution petition cannot be filed without the leave of the Insolvency Court against a person whose property has vested in the Official Receiver appointed by the Insolvency Court. It is therefore clear that E.P., No. 236 of 1926 cannot be said to be an application in accordance with law. If E.P. No. 236 of 1926 is disregarded the last order passed on an execution petition properly presented in accordance with law was the order passed on the 28th March, 1924, and E.P. No. 380 of 1932 which was not filed until 31st August, 1932, is long barred by limitation if Article 182 is applicable. Mr. Srinivasa Iyengar has therefore as we have already said, practically abandoned all the contentions raised before the Lower Court and he now seeks to contend that the proper Article applicable is Article 181 and not Article 182 of the Limitation Act. For this purpose he relied upon the Memorandum dated 29th September, 1926, and the Court's order dated 30th September, 1926. His case is that so long as the order dated 30th September, 1926, was in force it was impossible for the decree-holder to execute the decree as against the second defendant and therefore he is entitled to a period of three years from the date on which that obstacle to execution was removed. Actully the learned Subordinate Judge passed his order cancelling the order of 30th September, 1926, only on 14th August, 1933. In support of this contention Mr. S. Sreenivasa Iyengar relies upon the case of Rungiah Goundan & Co. v. Nunjappa Row (1903) 13 M.L.J. 412 : I.L.R. 26 Mad. 780 and also Ramineedi Venkata Appa Rao v. Lakkoju China Ayyanna (1906) 17 M.L.J. 194 : I.L.R. 30 Mad. 209. He refers also to the Privy Council in Rameswar Singh v. Homeshwar Singh (1920) 40 M.L.J. 1 : L.R. 48 I.A. 17 (P.C.) and a decision of a Bench of this Court in Mangamma Nayakuralu v. Ramadasappa (1924) 48 M.L.J. 563. Mr. S. Sreenivasa Aiyangar also mentioned the case of Chattar Singh v. Kamal Singh (1926) I.L.R. 49 All. 276 (F.B.) but we are unable to understand how that could have any application since it is not alleged by any party in this case that the execution of the decree has at any time been stayed by, an injunction or an order. The other four cases also so far as we can see do not support Mr. S. Sreenivasa Aiyangar's contention. The case reported in Rangiah Goundan & Co. v. Nunjappa Row (1903) 13 M.L.J. 412 : I.L.R. 26 Mad. 780 was a case in which on the date of the decree the decree was not executable at all. Therefore it was held that Article 179, corresponding to the present Article 182 was not applicable but Article 178, now Article 181, was applicable, the period of limitation being three years from the date on which the decree-holder got a right to execute the decree. The case in Ramaneedi Venkata Appa Rao v. Lakkoju China Ayyanna (1906) 17 M.L.J. 194 : I.L.R. 30 Mad. 209 is somewhat similar. That was a case in which a sale held in execution of a mortgage decree was set aside and the auction-purchaser was given an order for refund of the purchase money. It was held there that after the sale when the decree-holder was in possession of the purchase-money he could not proceed with the execution of the decree but that when he was ordered to refund that purchase-money after the sale had been set aside, he got a right to execute the decree and could do so at any time within three years from the date of the order for refund of the purchase-money. The Privy Council case reported in Rameshwar Singh v. Homeshwar Singh (1920) 40 M.L.J. 1 :L.R. 48 I.A. 17 (P.C.) was another case in which on the date of the decree it was not capable of being enforced and their Lordships held that the period of Limitation was three years under Article 181 from the date on which the decree became enforceable. The case reported in Mangamma Nayakuralu v. Ramdasappa (1924) 48 M.L.J. 563 is similar to the case in Ramaneedi Venkata Appa Rao v. Lakkoju China Ayyanna (1906) 17 M.L.J. 194 : I.L.R. 30 Mad. 209. The principle of these cases is apparently that when the decree on the date on which it is passed cannot be executed, but becomes executable on a later date, the decree-holder has three years from date on which it becomes executable, Article 181 being applied. But it is important to notice that in these cases no question arose as to the laches or delay on the part of the decree-holder and no such question could arise in these cases. That this is important is indicated by their Lordships of the Privy Council in Rameshwar Singh v. Homeshvar Singh (1920) 40 M.L.J. 1 :L.R. 48 I.A. 17 (P.C.). At page 6 their Lordships expressed themselves as follows:
They are of opinion that, in order to make the provision of the limitation act 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. A decree so limited in its scope as that of the 27th July, 1906, under consideration cannot, in their opinion, be regarded as being thus capable of execution. Under that decree Ekradeshvar was not made personally liable, nor did it extend to any portion of the estate of Janeshwar which was not in his hands. None of the estate came to his hands until after the decision of the Board in 1914. As to the ability of the appellant to have applied to enforce his claim when in August, 1908, the Subordinate Judge decided that Ekradeshvar was entitled to recover possession against the widow, it is enough to point out that the High Court at Calcutta promptly stayed execution of this decision, and later on reversed it. Neither can their Lordships accede to an argument put forward by Counsel for the Respondents that the decree against Ekradeshvar could be treated as a decree against the estate of Janesvar, still less as one against that estate though not in the hands of Ekradeshvar. Their Lordships think that the appellant has not been shown to have been responsible for the delay which has taken place in giving effect to his title, which did not become complete until after the decision of this Board in 1914. They are of opinion that when the Limitation Act of 1908 prescribes three years from the date of a decree or order as the period within which it must be enforced, the language, read with its context, refers only, as they have already indicated, to an order or decree made in such a form as to render it capable in the circumstances of being enforced.
8. This point is emphasised by Wallace, J., in Mangamma Nayakuralu v. Ramdasappa (1924) 48 M.L.J. 563. Referring to the Privy Council case in Rameshwar Singh v. Homeshwar Singh1 Wallace, J., points out:
Part of the circumstances which their Lordships considered relevant in that case was whether or aot the decree-holder was responsible for the delay which had taken place in giving effect to his title, that is, his right to execute.
9. In the case which we are now considering there was nothing in the decree itself which could prevent the decree-holder from applying for execution and for this reason the cases relied upon by Mr. Srinivasa Aiyangar did not assist him. These are all cases where the decree-holder could not apply for execution at all. In the present case he could have applied for execution at any time after March, 1924 and the delay from March, 1924 to August, 1932, was his own delay entirely. The delay was due to his own negligence or laches and not to any defect in the decree or to any circumstances connected with the decree which prevented him from putting in, an application for execution. For this reason it seems to us that the application put in August, 1932, was very clearly barred by limitation and that it is not permissible for the decree-holder to rely upon the order of 30th September, 1926, as giving him any fresh starting point for limitation. We are clearly of opinion that Article 182 applies and that the decision of the learned Subordinate Judge is correct. C.M.A. No. 463 of 1933 must therefore be dismissed with costs.
10. With regard to C.M.A. No. 484 of 1933, the learned Advocate-General has discussed at some length the fact whether the memorandum Ex. H, filed on 29th September, 1926, was a forgery or was genuine. There are several points in favour of its genuineness. It was filed undoubtedly along with the execution petition and it appears to have been signed by the Vakil who signed the execution petition. Unfortunately that Vakil is now dead but nobody has questioned the genuineness of his signature. The case of the decree-holder apparently is that the forger deceived the Vakil. It is not easy, as the learned Advocate-General points out, to understand how this could have been done. It is also pointed out by the learned Advocate-General that in 1925 when a partition was made in the family of the assignee-decree-holder this decree debt was not mentioned although the assignee-decree-holder says that in the partition it fell to his share. These are important points. But we are not prepared to say on a consideration of all the evidence that the finding of the learned Subordinate Judge on this point is certainly wrong. It was found by the learned Subordinate Judge in 1924 that the assignment of the decree to the present execution petitioner was not made benami for the second defendant Vide Ex. B.
11. There has not been in this case any further attempt to prove that the assignment was benami. There are suspicious alterations in Ex. H and in the execution petition itself. And as the learned Subordinate Judge points out it is very difficult to understand why any such memoradum as Ex. H should have been necessary at all. If the respondents' first witness is telling the truth when he says that the vakil was asked to report to the Court that no relief was claimed against the second defendant, there is no reason whatever why this should not have been mentioned in the execution petition itself. If R.W. I is to be believed the vakil, when he prepared the execution petition praying for the arrest of both the defendants, was not acting in accordance with the decree-holder's instructions. On the whole therefore, we are not satisfied as we have said, that the learned Subordinate Judge's finding on this point is wrong. Therefore C.M.A. No. 484 of 1933 is also dismissed with costs.