1. In the present case a decree, dated 7th September, 1865, ordered the delivery of property to the plaintiff, a widow, for her maintenance, or else payment to her of Rs. 36 a year for the same purpose. The property was not delivered, but the annuity was paid for some years; when a default occurred, the widow sought and obtained execution through the Court for three years arrears due in. August, 1881.
2. The application, with which we have now to deal, was made on the 6th June, 1885. The District Court has agreed with the Subordinate Judge in holding the application was barred by limitation as having been made more than three years after the last preceding application under the same decree. For this decision the Courts rely on the cases Sabhanatha Dikshatar v. Subba Lakshmi Ammal I.L.R., 7 Mad., 80, Yusuf khan v. Sirdar I.L.R. 7 Mad., 83 Khan but it is to be observed that the former of these cases turned rather on the circumstance that the decree sought to be executed was declaratory only as to the future right, not a command to satisfy it by specified payments. The distinction is important as indicated by the cases Lakshman Ramchandra Joshi v. Satyabhamabai I.L.R.,2 Bom., 494; Vishnu Shambhog v. Manjamma I.L.R., 9 Bom., 108. A Court in executing a decree cannot itself make a new decree. It, can only give effect to a positive command, and dispose of such questions as arise incidentally in giving effect to it. In the present case there was a positive alternative command by the Court, that the defendant should pay the plaintiff Rs. 36 a year, and such a decree would, we think, be subject to the principle laid down in Sakharam Dikshit v. Ganesh Sathe I.L.R. 3 Bom. 193. There is no precise date specified for payment of the annuity, and this, according to one of the Madras cases, would be an important circumstance against the judgment-creditor; but construing the decree, as it ought to be construed, most favourably to him on whom it bore, we must say that he became liable to pay Us. 36 on the day year from its date, and thenceforward on the corresponding date year after year. The decree was, as to each year's annuity, to be regarded as speaking on the day upon which for 'that year it became operative, and separately for each year. If this were not so, the judgment-debtor, by paying regularly for three years, and so intercepting an application to the Court, could escape payment for ever afterwards. The right to execute accruing on a particular day, limitation is, we think, to be computed from that day, should the judgment-debtor fail to obey the order of the Court. Should he omit to pay, he may, as to the particular sum, have the benefit of limitation where that comes in to protect him.
3. We reverse the decrees below, with costs throughout on the respondents, who are to pay the annuity claimed for each time of payment falling within three years of the application.
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