CHOTEY SINGH Vs. ESHWARI

JUDGEMENT

(1.) This is a decree-holder's appeal in an execution case; both Courts below have held the decree to be barred by limitation. A preliminary decree under Section 88 of the Transfer of Property Act was passed on December 24 1889, which was followed by a decree absolute for sale on September 11 1890. Various proceedings in execution followed, the decree-holder apparently granting extensions of time in return for part payment. The learned District Judge seems to have been under some misapprehension when he spoke of execution being "apparently barred by time" when a payment of Rs. 140 was certified in May 1899. It has been conceded before us in argument that the decree was alive and capable of execution when an application for the same was made on July 13th, 1901. This application was pending, and sale has actually been ordered, when on December 20th, 1901, the parties presented to the Court and attested before it an agreement under the provisions of Section 257 A of the former Code of Civil Procedure, Act XIV of 1882. According to this agreement the judgment-debtors were to pay Rs. 1,800 (a larger sum than was due from them under the decree), but without further interest, and in certain specified instalments. The property was to remain hypothecated until the whole was paid; and in case of default in the payment of any one instalment, the decree-holder was to become entitled to "execute his decree". Payments under this compromise were certified to the Court on June 11th, 1904 and again on May 14th, 1906. Finally, the judgment-debtors having made default, the present application was made on May 22nd, 1908. The application is for execution of the decree absolute of September 11th, 1890; but the decree-holder claims to execute the same subject to the terms of the agreement of December 20th, 1901. It is certainly very doubtful whether he can do this in face of this Court's ruling in Kashi Pershad V/s. Sheo Sahai 19 A. 186, where it was held that a decree for sale under the Transfer of Property Act was not capable of adjustment under the provisions of Section 257A of the Code of Civil Procedure. We were asked to reconsider this ruling, but it does not seem, necessary for us to do so. It may be that the decree-holder is not entitled to enforce the agreement of December 20th, 1901, but that his decree of September 11 1890 is still alive and capable of execution according to its terms, due allowance being made for any payments since certified. We have to decide at present only the question whether the Courts below were right in holding this decree to be time-barred. The case depends on the provisions of Art. 179(4) of the Second Schedule to the Indian Limitation Act (XV of 1877). We have not to decide whether the certifying of the agreement of December 20 1901 was a step-in-aid of execution. There had been, as already pointed out, an application for execution on July 13 1901; the decree-holder's applications to have payment certified on June 11th, 1904, was within three years of this date, and the similar application of May 14th, 1906, was made within three years both of this latter date and of the 22nd May, 1908, when execution of the decree itself was again asked for. The question then narrows itself down to this: Whether the decree-holder's applications under Section 258, of Act XIV of 1882, can be treated as applications to the Court to take some steps-in-aid of execution of the decree or order. There are two reported cases in the appellant's favour:

(2.) Sujan Singh V/s. Hira Singh 12 A. 399 and Tarini Das Bandyopadhy V/s. Bishtoo Lal Mukhopaday 12 C. 608.

(3.) The only distinctions which can be drawn against the appellant are that in the former case the Court laid some stress upon the fact that an application for execution was actually before the Court at the time when the payment was certified, and that in the latter case the decree-holder took the precaution of asking that an execution proceeding which had been struck off should be restored to the file, and that the petition under Section 258, Civil Procedure Code, be "placed on the record." The ratio decidendi of this case is in favour of the present appellant. It is pointed out that the effect of the certificate is to satisfy the decree so far as the sum certified is concerned." It must be remembered that without such payment being certified, on the application of one or other of the parties, it could not be recognized as a payment by any Court subsequently executing the decree. An application by the decree-holder under Section 258 of Act XIV of 1882, therefore, calls upon the Court to do a certain act which ipso facto satisfies the decree to the extent of the payment certified, and without which the decree would not be satisfied to any extent whatever. We hold that such an application satisfies the requirements of Aricle 179(4) of the second Schedule to the Indian Limitation Act (XV of 1877), and that no sound distinction can be drawn between the present case and the case of Kashi Pershad V/s. Sheo Sahai 19 A. 186.