YASHWANT DEORAO DESHMUKH Vs. WALCHAND RAMCHAND KOTHARI

JUDGEMENT

(1.) This appeal, preferred from the decree of the Bombay High Court in Appeal No. 281 of 1947, raises the question whether an execution application seeking to execute a final decree, passed by the 1st Class Subordinate Judges Court at Poona, on 6/12/1932, for a sum of Rs.1,24,215.00 and odd, is barred by limitation. The decree was made in a suit for dissolution of a partnership and the taking of accounts.

(2.) The execution application was filed on 4/10/1946, and the amount stated to be due under the decree on that date was Rs.2,30,986.00 and odd. The previous Exn. Appln. No. 946 of 1940 filed in the Court of the 1st Class Sub-Judge Sholapur, to which the decree had been transferred for execution, was made on 24/6/1940. It was dismissed on 9th Septem-ber, 1940 for non-prosecution.

(3.) It would thus be seen that the present application was filed after the lapse of 12 years from the date of the final decree and three years from, the date of the final order on the previous application. To surmount the bar of limitation, the decree- holder, who is the appellant before us, raised four contentions : firstly, that the final decree, which provided that the plaintiff should pay the deficit court-fees on the decretal amount before the execution of the decree, was a conditional decree, and that time began to run from the date when the condition was fulfilled on 5/12/1935 by payment; secondly that the period occupied by the insolvency proceedings from 10/8/1937 to 14/12/1942, initiated by the decree- holder to get the first judgment-debtor Walchand Ramchand Kothari (with whom alone we are now concerned) adjudged an insolvent, should be excluded under s. 14 (2), Limitation Act; thirdly, that the period occupied by one Tendulkar, who was the creditor of the present decree-holder, in seeking to execute this decree should be deducted; and lastly, that as the judgment-debtor prevented execution of the decree against the Prabhat newspaper by suppressing his ownership of the same, a fresh starting point of limitation springs up in the decree-holders favour from the date of the discovery of the fraud.