The Judgments of the Court were as follows:—
Maclean, C.J:— When one is in possession of the facts of this case, the point which one has to decide is reduced to very narrow limits. The question is whether the application of the decree-holder of 5th June 1893 was an application made by him in accordance with law to take some steps in aid of execution with in the meaning of sub-sec. 4 of Art. 179 of Sch. II of the Limitation Act.
The facts are these:— The Appellant is here the judgment-creditor and the Respondent is the judgment-debtor. I need not go through the various steps which the judgment-creditor has taken to try and obtain the fruits of his judgment, but the took several, and has not obtained payment. On the 5th June, he made an application of a double nature; one part of he application was that the heirs of the deceased judgment-debtor might be substituted in the place of the judgment-debtor who had died, so that the proceedings might be carried on against them, and the other part of the application was that the steps might be taken to enable him to obtain, by way of execution,. the fruits of his judgment. It is said that is not a step in aid of execution in accordance with law within the meaning of the sub-section to which I have referred
The ground upon which that view is based is that at the time the judgment-creditor made this application, the decree he had obtained had been attached by a judgment-creditor of his own, and that being so, he had not sufficient interest in the decree which he had obtained to enable him to sustain the application in aid of execution.
I do not think’ that is a valid objection. The judgment-creditor still had an interest in the decree which he had obtained; and the attachment order did not prevent him from presenting the decree with a view to its execution. Such a step would not be adverse to the rights of his own judgment-creditor, as it would be for the interests of both, that, if possible, the fruits of the decree should he obtained by execution. He could have paid off his own judgment creditor, and then his own judgment decree would have been free from the attachment order.
The learned Judge in the Court below has taken no notice of that part of the application which asked for the substitution of the heirs of the judgment-debtor in place of the judgment-debtor. Without bringing them before the Court, the judgment creditor could not have proceeded with his execution proceedings. His application for that purpose appears to me to be a step in aid of execution in accordance with law.
I ought to have stated that another objection was taken, that it was not an application in accordance with law, because it was refused. “In accordance with law” cannot, I think, mean that it must of necessity be a successful application. That is too narrow a construction to put on the article, nor does the language of the sub-section justify such a view. It is conceded that if the application of the 5th June 1893 were a step in aid of execution in accordance with law, then the present application for execution is not out of time.
I ought, perhaps, to refer to a suggestion rather than an argument, which was thrown out, viz., that a previous application of the 6th June 1890 in aid of execution, was not well-fund, and consequently that the application of the 5th June 1893 was itself out of time.
I am unable to attach any importance to this suggestion; and I am not satisfied that he can properly go into it.
The Judge who, in the first instance decided this point, decided it in favour of the judgment-creditor; but the District Judge has reversed that decision.
I think that the application of the 5th June 1893 was as an application in accordance with law to taka a step in aid of execution 5 and the case appears to me to be consistent in principle with the case of Hafizuddin Chowdry v. Abdool Azziz (1).
I do not think that the language of art. 179 of the second schedule of the limitation Act ought to be strained in favour of a judgment-debtor who has not paid his just debt, and there are a variety of reported cases to show that applications, some of which, in my opinion, are not so strong as this, have been regarded as steps taken in aid of execution. Upon these grounds, I think that the District Judge was wrong, and that the order of the first Court must be restored. The appeal, therefore, must be allowed with costs in this Court and in the lower Appellate Court, the hearing fee in this Court being fixed at two gold mohurs.
Banerjee, J.:— I am of the same opinion. The question raised before us is whether the application for execution of the decree in this case, which is dated the 22nd November 1887, was barred by limitation. The first application for execution was made on the 18th February 1889, and so that was filed in time. The second application for execution was made on the 8th May 1890, which was within three years of the date of the last application; and that also was, therefore, in time. Then on the 6th June 1890, an application was made for execution of this decree, by enforcing the execution of another decree which had been attached in execution of the present one, and that was rejected on the nth June 1890. The next application that was made with reference to the execution of the decree, was an application made on the 5th June 1893, for the execution of the decree after substitution of the legal representative of the deceased judgment-debtor in his place. That application was dismissed on the 16th June 1893 on the ground that, as the decree, sought to be executed, had been attached in execution of another decree, obtained against the present decree-holder, no execution could issue, the order evidently having been made with reference to the provisions of sec. 273 of the Code of Civil Procedure. That attachment was subsequently removed, and the present application for execution was made on the 11th December 1894
The first Court disallowed the objection of the judgment-debtor that the present application was barred, and ordered execution to proceed. On appeal, the lower Appellate Court has reversed that order, holding that execution was barred by limitation; and the question is whether the decision of the lower Appellate Court on that point is correct.
If the application of the 5th June 1893 an application in accordance with law to the proper Court to take some step in aid of execution of the decree, within the meaning of clause 4 of article 179 of schedule II of the Limitation Act, the present application, which is well within tree years from the date of that application, is not barred, provided, of course, that the application of the 5th June 1893 was itself not barred. The learned vakil for the Respondent contends that the present application is barred, because the application of the 5th June 1893 was not an application according to law, within the meaning of clause 4 of article 179, and also, because, even if that application be held to be one according to law, that application itself was barred, as it was made more then three years after the second application made on the 8th May 1890, the intermediate application for execution dated the nth June 1890 being one not according to low.
The two questions we have to consider, therefore, are, first, whether the application of the 5th June 1893 was one according to law, and, secondly, whether the application of the 6th June 1890 was one according to law.
As regards the application of 5th June 1893, the main objection to it is, that as under sec. 273 of the Code of Civil Procedure, the Court was bound to stay execution of this decree, by reason of a notice of attachment of the same having been received from another Court, no application for execution could have been made according to law. Granting that is so, the application of the 5th June 1893 was not merely an application, but contained a further prayer for the substitution of the legal representatives of the deceased judgment-debtor in his place and although the Court under sec. 273 of the Code, was bound to stay execution until the notice issued at the instance of the party who had attached the decree was withdrawn, I do not think that there was any bar to its making the substitution of the legal representatives of the deceased judgment-debtor in his place, as prayed. The object of sec. 273 of the Code, in directing stay of execution, is, merely, to prevent the holder of the attached decree from realizing and taking away the fruits of that decree; but it cannot be held to have been intended to prevent an incidental step like that, which was a necessary step for the execution of the decree being taken. The taking of such a step would, instead of defeating the object for which the decree had been attached, have only furthered it by placing on the record the party against whom, and against whom alone, execution could have been taken at the instance of the attaching decree-holder. That being so, as far as the prayer for substitution was concerned, the present decree-holder, in applying to the Court to make such a substitution was, in my opinion, making an application in accordance with law to the proper Court, to take some step in aid of execution, within the meaning of clause 4 of art. 179.
It was contended that as the Court to which the application was made had disallowed the application, and no appeal was preferred against the order disallowing it, we must take it that the application that was made was not made according to law. I do not think that such a view is at all tenable. To affirm the proposition for which the learned vakil for the Respondent contends, would be to hold that none but a successful application can come within the scope of clause 4 of art. 179. That certainly could not have been intended. See Hafizuddin Chowdhry v. Abdul Aziz .
This brings me to the consideration of the application of the 6th June 1890. The ground upon which it is contended that application was not one according to law is, that it was an application made by the decree-holder to execute another decree which he had attached in execution of the present decree, and it was rejected by the Court, because, under sec. 273 of the Code, the proper procedure was for the decree-holder to apply to the Court to direct the proceeds of the attached decree to be applied in Satisfaction of his own, instead of applying for execution of that decree at his instance. Though that application was rejected by the Court, sec. 273 of the Code was really no bar to it, and I do not think that for the present purpose it should be treated as an application not made according to law. See Peary Mohan Chowdhury v. Romesh Chunder Nundy (2).
Various cases were referred to by the; learned vakil for the Respondent in the course of his argument, as to the meaning of the words “applying in accordance with law.” None of those cases is in point; and I do not think we should be doing right in straining the law, and in holding that an application made bona fide with the object of obtaining satisfaction of a decree should be held to be not in accordance with law merely because the Court in which the application was made thought fit for some reason not to allow the same. The view I take is in accordance with the opinions of the learned Judges of the Madras High Court in the case of Kunhi v. Sheshagiri (3).
The Court had not, when dismissing the former application, to consider whether, for the purposes of the law of limitation, that application could or could not be treated as one made according to law. The order dismissing the former application cannot, therefore, be regarded as conclusive upon the present question. That being so, I think that there is no force in the contention urged on behalf of the Respondents, that the two applications, referred to above, should be treated as being not according to law; and if that contention fails, the present application is clearly in time.
Appeal allowed.