RAMGOPAL BHUTADA Vs. SIDRAM AUNAYYA

JUDGEMENT

(1.) THIS is an appeal under the Letters Patent against a decision of Mr. Justice N.J. Wadia dismissing an execution on the ground that it was barred by limitation under Section 48 of the Code of Civil Procedure. The decree under execution was passed on November 24, 1923, and the execution with which this appeal is concerned was the sixth of a series of executions and was taken out on December 13, 1935. Prima facie it is barred by Section 48 of the Code of Civil Procedure, which says that, subject to certain exceptions, where an application to execute a decree has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from the date of the decree sought to be executed. In the fourth darkhast of the series presented on October 30, 1930, execution was ordered to issue by the executing Court, and an appeal was preferred to the High Court by the judgment-debtors; and on February 6, 1932, a stay order was granted which in effect continued up to December 20, 1932-a period of about ten months. The present application for execution is nineteen days out of time, and the question for decision is whether the stay order has the effect of extending the period of limitation; in other words whether Section 48 of the Code of Civil Procedure is controlled by Section 15 of the Indian Limitation Act.

(2.) SECTION 15 of the Indian Limitation Act provides that In computing the period of limitation prescribed for any suit or application for the execution of a decree the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order... shall be excluded. Mr. Justice N.J. Wadia followed a decision of the High Court of Madras, Subbarayan v. Natarajan (1922) I.L.R. 45 Mad. 785 in which it was held that SECTION 48 of the Code of Civil Procedure contains an unqualified prohibition (subject to certain exceptions mentioned in the section) against execution of certain decrees more than twelve years old, and that the section is not controlled by SECTION 15(1) of the Indian Limitation Act. No other authority seems to have been cited. before him. I feel some difficulty in regarding this decision as authoritative. The reasons for the decision, put shortly, are that the word "prescribed" occurring in SECTION 15 of the Indian Limitation Act means "prescribed by the first schedule of the Indian Limitation Act" and does not apply to any period of limitation laid down by any other Act. The other ground of the decision was that SECTION 48 of the Code of Civil Procedure does not prescribe a period of limitation at all in the strict sense. But the learned Judges composing the bench did not agree on the meaning of the word "prescribed" in SECTION 15 of the Indian Limitation Act. Mr. Justice Spencer says "Though the words 'in the schedule 'do not occur in this section or in SECTION 19, as they do in SECTIONs 3 and 6, the word 'prescribed' can in applying the Act to suits under the general law refer to nothing else ". But though he gives no reasons for this statement, it is the only ground upon which he held that SECTION 48 of the Code of Civil Procedure is not controlled by the Limitation Act. Mr. Justice Ramesam on the other hand was strongly of opinion that the word "prescribed" was not limited to periods of limitation prescribed by the Limitation Act. He bases his decision upon the possibility of using the phrase "period of limitation" in two senses, a strict sense and a loose sense. He says that in the strict sense a period of limitation includes a time beyond which execution will be out of time and within which execution will be in time : and he points out that SECTION 48 of the Code of Civil Procedure prescribes a period of limitation beyond which execution will be out of time but does not provide (and indeed in view of the Limitation Act cannot provide) that all executions within that period will be within time. But with all respect this seems to me to be a distinction without any real difference.

(3.) ONE more point was taken in this appeal and that was that the period of limitation for this particular execution began not with the date of the original decree in 1923 but in the year 1930. There was a cross suit which was decided by the trial Court eighteen months after the decree now under execution was passed. But pending that decision an agreement was arrived at between the parties providing that whoever obtained a decree for the larger amount should execute only for the excess. The litigation with regard to this second suit ended only in 1930, when the High Court decided the appeal; and in execution of that decree the High Court decided in appeal that the excess amount could only be ascertained after the final decree was passed and the final decree would be the decree passed in appeal, if any; and also that the period of limitation for taking out execution proceedings for recovery of the excess amount would run from the final decree. But even if the present execution is only for the excess amount, it is still an execution of the decree in the first suit, and I do not think that the fact of its being only for the excess amount will prevent the twelve years running from the date of the decree in the first suit. In my opinion the appeal should be allowed and the order of the trial Court allowing execution to proceed should be restored, with "costs in this Court and in the Court of first appeal. Broomfield, J.