1. This an appeal from an order by the Subordinate Judge of Moradabad in execution proceedings. The decree which was sought to be executed was passed on the basis of an award on 18th May 1909. The present application for execution was filed on 17th November 1924 In the lower Court the judgment-debtor, Sahu Nandlal Saran objected to the execution of the decree on the following grounds: 1. That twelve years has expired since the date of the decree sought to be executed, so the application was barred under the provisions of Section 48(a), Civil P.C.; (2) that if for any reason there was no such bar then the application was barred by the period of three years fixed under Article 182(2), Lim. Act, because no step-in-aid of execution of the particular decree had been taken with three years of 17th November 1924; (3) that the decree was not capable of execution on the ground that there was no operative order in the decree for the recovery of the sum claimed by the decree-holder.
2. The lower Court held that there was no bar under Section 48 because the period of limitation would be calculated not from the date of the decree but from the dismissal of an appeal from that decree on 18th November 1912 that there had been a step taken by the decree-holder against another judgment-debtor for recovery of certain costs by an application in execution which saved limitation as against the present judgment-debtor objector and that though there was no operative order in the decree of 18th May 1909 for the payment of the sum claimed by the decree-holder from the judgment-debtor, this defence was barred to the present judgment-debtor by the rules of res judicata.
3. The last point may be disposed of first. The award dealt with the business of the firm of Sahu Radha Kishen whose descendants were parties to the suit for partition. In the award, while making up the accounts of the karkhana (business concern) of Gokul Prasad, Brij Bhukan Saran and Sibta Prasad, the arbitrator, has taken into account in favour of Dharam Kirti Saran and Sibta Prasad a sum of Rs. 12,046 2-3 payable to them by the Rampur business in which the present judgment-debtor Nandlal Saran was a partner (see p. 171 of the printed paper-book, F.A. No. 21 of 1911, District Moradabad, filed on 18th January 1911). Though this sum has been noted as due to Dharam Kirti Saran and Sibta Prasad, there is no direction in the award that the firm carrying on business in Rampur was liable to pay this sum to Dharam Kirti Saran and Sibta Prasad. No direction was given by the arbitrator as regards this sum of money because in an earlier portion of the award (p. 141 of the same printed book) an order was recorded by the arbitrator as part of the decree in the following terms:
Out of the properties which were admittedly held jointly by all the members of the family of Sahu Radha Kishen the kothi hundi (i, e., the Hundi business) at Rampur and the immovable property in the said State are not partible by the civil Courts situate in British India.
4. It is clear, therefore, that the arbitrator was of opinion that he had no jurisdiction to pass any orders regarding this sum of Rs. 12,046-2-3. Sahu Dharam Kirti Saran however applied for recovery of his half share of this money by an execution application which was execution Case No. 308 of 1914. Nandlal Saran objected to this application but his objection was dismissed on 11th October 1915 on the ground that he and the other judgment-debtors were managers of the Rampur kothi and bound to pay the decree-holders' share of this sum of Rs. 12,000 odd. That order is final and the judgment-debtor cannot be permitted to re-open the question in a subsequent execution proceeding. If not otherwise barred, the applicant Dharam Kirti Saran would be entitled to recover his half share of this sum of money.
5. We shall next consider the question of limitation under Section 48 of the Code of Civil Procedure. The proposition of law was accepted by the appellant's learned Counsel that where an appellate decree either affirms, modifies or reverses the decree of the trial Court, the period of limitation will begin from the date of the decree of the appellate Court. As observed in Ramesh v. Lakshmi Kant (1871) 16 WR 1:
If the decree of the lower Court is reversed by the appellate Courts, it is absolutely dead and gone; if, on the other hand, it is affirmed by the appellate Court, it is equally dead and gone, though in a different way, namely by being merged in the decree of the superior Court, which takes its place for all intents and purposes. Both the decrees cannot exist simultaneously.
6. The question for our consideration will, therefore, be whether the order of this Court of 18th November 1912, amounted to a decree so as to put an end to the decree of the trial Court of 11th May 1902. As we have already noticed, the decree of the trial Court was passed on the basis of an award from which no appeal is allowed by law. A so-called appeal was filed by Sahu Sibta Prasad and prosecuted after his death by his son Sahu Parana Kirti Saran minor under the guardianship of his mother. A Bench of this Court held that no appeal lay to this Court, because the award being a legally valid one and the decree being in accordance with the award, no appeal could be preferred from that decree. The Court, therefore, dismissed the so-called appeal without entering into the merits of the case. In our opinion such an order is not a decree affirming the decree of the trial Court and therefore there was no appellate decree in which the decree of the trial Court could merge. The rulings cited on behalf of the respondent do not cover this particular point. No case was cited to us in which the period of limitation was counted from the date of the dismissal of a so-called appeal in a case where no appeal lay under the law.
7. In Muhammad Razi v. Karbalai Bibi (1910) 32 All 136 the appeal, when it was filed, was a proper appeal, but subsequently, on the death of the appellant, no action was taken by his successor to be brought on the record and so the appeal abated and was dismissed. In that case an appeal did lie and the dispute between the parties was determined by the appellate Court. The decree of the trial Court, therefore, would be merged in such a decree of the appellate Court.
8. The next ruling cited on behalf of the respondent was in the case of Rup Narain Sheo Prokash AIR 1921 All 131. On reading the judgment of the learned Judges, the first impression would be that no appeal lay in that case and the appellant had come to that Court merely to get certain words in the judgment deleted for his personal satisfaction. When we examined the records of the appeal (Ex. F.A. No. 50 of 1907), we found that the appellant had a right of appeal and did appeal in the ordinary way against the decree of the trial Court, but he had no real objection to the decree itself; the Court below had given him what he had asked for: a decree absolute for sale; his real objection was that certain words appearing in the judgment, but not appearing in the decree, suggesting that the appellant decree-holder should give time to the judgment-debtor might at some subsequent date be given effect to in a sense adverse to his interests; and under colour of appealing from that decree he was really appealing against a suggestion made only in the judgment. But though it was held that an appeal did not lie against the words used in the judgment, an appeal did lie against the decree, was properly preferred and was disposed of in the ordinary way by a finding that the decree-holder had really got all for which he asked. A Bench of this Court decided that those words did not form part of the decree and were not operative and that the appellant was in no danger of any loss, if such words were maintained in the judgment. This Court further declared that if at a subsequent date the rights of the appellant were prejudiced, he would have an opportunity of appealing to this Court from that fresh order. In such a case it will not be correct to say that the appeal was barred by any provisions of law.
9. Decree means Section 2(2) Civil Procedure Code):
the formal expression of an adjudication which so far as regards the Court expressing it conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit.
10. In the case before us this Court held that it had no jurisdiction to give any formal expression of an adjudication determining the rights of the parties, because no appeal lay to this Court under the law.
11. In Abdul Majid v. Jawahir Lal AIR 1914 PC 66 their Lordships of the Privy Council had to consider a case where an appeal to the Privy Council was dismissed for want of prosecution. They held that the period of limitation in such a case commence from the date of the decree of the High Court and not from the date of the order in Council dismissing the appeal. They observed:
The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognized authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all.
12. These words were repeated by their Lordships in a subsequent case, Sachindra Nath Roy v. Maharaj Bahadur Singh AIR 1922 PC 187. In our opinion the case before us is stronger because in the Privy Council case an appeal did lie and had been properly preferred, while in the present case the proceedings not only did not terminate in an order dealing judicially with the matter in suit, but, as no appeal lay at all could not under any circumstances, whatever have so terminated.
13. We hold, therefore, that where it has been held that no appeal lay, the order disposing of the so-called appeal will not amount to a decree. The converse proposition, though it is not necessary for us to decide this, would also seem to be in conformity with the spirit of Section 2. with the decision of their Lordships of the Privy Council and with Indian judicial authority, viz. where an appeal lay and that appeal was disposed of by an order, that order will amount to a decree except as in the case dealt with by their Lordships of the Privy Council (a case of dismissal for default) and in other special cases where it is expressly declared by Section 2 that the order shall not amount to a decree. We are, therefore, of opinion that in the present case the period of 12 years should be counted from the date of the original decree, i.e., 18th May 1909, and not from the date of the dismissal of the so-called appeal here on 18th November 1912. The respondent's present application for execution is, therefore, beyond time.
14. The execution case, which according to the decree-holder respondents saves limitation, is Case No. 233 of 1921, in which the application was filed on the 3rd March 1922. The present application is filed within three years of the date of that application, which was filed by Dharam Kirti Saran in Court. The amount sought to be recovered and which was deposited consisted of costs, which were awarded to Dharam Kirti Saran against this particular judgment-debtor Param Kirti Saran, during execution proceedings in the trial Court and in the High Court. Dharam Kirti Saran had applied for execution of a portion of the decree of 1909, in which he was decreed a sum of Rs. 51,000 odd against the deceased father of Param Kirti Saran. Param Kirti Saran objected and his objection was dismissed. The execution Court ordered on 8th March 1916, (Execution Case No. 308 of 1914 and Misc. Case. No. 127 of 1916) that Param Kirti Saran, judgment debtor shall pay Rs. 418-8-0 to the decree-holder Dharam Kirti Saran on account of the costs incurred in the application of objection. Param Kirti Saran appealed from this order, His appeal was dismissed, and he was made liable to pay costs, Rs. 262. These were the two items of costs of which recovery was desired by an application of 30th August 1921 in the execution department. The question is whether this step in execution of a decree against one of several judgment-debtors saved limitation as against the present judgment-debtor who was not a party to the previous execution proceeding. If it does not, the application of 3rd March 1922, for withdrawal of this money from Court will not save limitation Explanation I to Article 182 of the first schedule of the Limitation Act lays down (2nd para):
Where the decree or order has been passed severally against more persons than one, distinguishing portions of the subject-matter as payable or deliverable by each, the application shall take effect against only such of the said persons of their representatives as it may be made against But 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.
15. It was argued on behalf of the appellant that the first portion of this rule will apply to the present case. The alleged facts, on which this argument was based, are not correct in our opinion. The appellant's case was that there was no portion of the decree passed against all the defendants jointly in favour of Dharam Kirti Saran, that the decree was passed severally and Nandlal Saran was not interested in the portion of the decree passed in favour of Dharam Kirti Saran against Sibta Prasad. We find in the award Clause (19) that certain properties were allotted to Dharam Kirti Saran as against all the defendants of this suit. The decree passed on this award decreed this property, which was joint up to the institution of the suit, in favour of Dharam Kirti Saran against all the defendants. It is not the fact therefore that no portion of the decree was passed jointly against all the defendants. The case before us does not appear to be specifically provided for in the explanation where a portion of the decree is jointly passed against all the defendants and there are other portions of the decree passed severally against different defendants. The question will be whether such a decree will fall within the first portion of the explanation or the second, or whether such a decree will be governed by the first part of the explanation as regards the several decrees and by the second portion of the explanation as regards the joint decrees. The opinion of the Madras High Court is that where any portion of the decree is joint, the case will fall within the second part of the explanation. This was laid down by a Bench of the Madras High Court in Subramanya Chettiar v. Alagappa Chettiar [1906] 30 Mad 268. According to the learned Judges the second part of the paragraph should be read literally, i.e., the words "where the decree or order has been passed jointly against more persons than one." The reasoning does not appear to us to be convincing. If the first portion is read literally-"where the decree or order has been passed severally"-it may be argued with equal reason that such a case must be governed by the first part of the explanation.
16. The principle appears to us to be that when A, B and C are jointly liable and the decree-holder is attempting to recover the decretal amount from one of them, he should not be barred from recovering it from the rest if he fails to recover it from that particular judgment-debtor. He exercises due diligence in recovering the amount decreed to him and it will be no fault of his if he does not find the particular judgment-debtor of sufficient substance to pay up the entire decree In such a case it will be equitable to direct that steps taken in aid of execution against one of the joint judgment-debtors should save limitation as against the others. It is also obvious that when a joint decree is passed the decree-holder cannot execute it at one and the same time against them all separately for the same amount. The case is different when certain portions of a decree are jointly passed and others severally passed against more persons than one. While the decree-holder is executing the joint portion of the decree against one of the joint judgment-debtors, there is nothing to prevent him from executing the other portions of the decree against the several judgment-debtors who are liable thereunder. It would be expected of a diligent decree holder that he should do so. We think, therefore, that where a decree is jointly passed against all the defendants in one matter and severally against different defendants with respect to other matters, the first portion of the explanation should apply to decrees passed severally and the second portion to the decree or decrees passed jointly. We find ourselves unable to agree with the opinion of the Madras High Court. We have not been referred to any ruling on the subject of any other High Court during the arguments. We hold that the application is barred by the three years' limitation.
17. From another point of view also the application will be so barred. The three years' period is to be counted in terms of Article 112, Clause (5):
Where an application for execution has been made, the date of paying in accordance with law to the proper Court for execution or to take some step-in-aid of execution of the decree, the step-in-aid of execution which would save limitation is the step taken in execution of that particular decree which is sought to be executed subsequently.
18. In the present case the step taken was to withdraw costs of execution proceedings and those costs wore not costs in the suit. Those costs were not of the suit because they were not incurred in execution proceedings but were incurred by a particular objector who objected to a certain execution proceeding. That decree for costs was a separate decree against a particular objector. The execution application for recovery of such costs was not an execution application of the original decree. The learned Subordinate Judge has explained away this difficulty by holding that the application in execution by Dharam Kirti Saran for recovery of Rs. 51,000 and odd the objection of Sahu Param Kirti Saran to the payment of that amount were proceedings in suit between the preliminary decree and the final decree. According to the lower Court the order for payment, dated the 8th March 1916, was really a final decree for the payment of Rs. 51,000 odd and the costs incurred in obtaining that decree were costs in the suit. If this view be accepted the decree of 1908 will be taken to be a preliminary decree and there would be several final decrees on foot thereof. The present judgment-debtor was not a party to the final decree of 8th March 1916, so any steps taken in execution of that decree cannot save limitation against the present judgment-debtor.
19. Our view that application for execution of costs incidental to the execution proceedings was not an application for the execution of the original decree or any part of it is supported by a Bench ruling of the Madras High Court in Appu Rao v. Rama Krishna Chettiar [1901] 24 Mad 672. In the result we decree the appeal and dismiss the execution application of Dharam Kirti Saran with costs.