FATIMABIBI MAHOMED PIRJADE Vs. SHAMSUDDIN HASAN SAIBA

JUDGEMENT

(1.) The question in this appeal is whether the appellants application for the drawing up of the decree was barred by limitation.

(2.) The plaintiffs sued on an installment bond passed by defendant No. 1 in favour of the predecessor-in-title of the plaintiffs and defendants Nos. 2 to 7. The trial Court passed a decree in favour of the plaintiffs and defendants Nos. 2 to 7 concluding as follows: "The decree should be drawn up after the several claimants produce succession certificates and apply for the drawing up of the decree." This judgment was passed on June 10, 1921. In 1923, the plaintiffs applied, but without certificates. On June 9, 1924, they again applied. That application was kept on the file, and lastly the plaintiffs applied in 1925 and obtained a succession certificate and thereafter asked for a decree to be drawn up. The defendants contended that this application was barred by limitation. The trial Court held that the application was filed in the suit and the Indian Limitation Act had no application, and ordered the decree to be drawn up as prayed. In appeal the lower appellate Court held that Art. 181 of the Indian Limitation Act applied, time running from the date of the judgment and dismissed the claim being barred by limitation. The plaintiffs appeal.

(3.) It is argued for the appellants that Art. 181 does not apply to an application such as the present. Secondly, even if it does, the application of 1925 should be taken as a revival of the application of June 9, 1924, which is within three years of the judgment, It is contended for the respondent that Art. 181 applies and inasmuch as the judgment expressly directed the plaintiffs to apply and in the absence of any other article, Art. 181 as the residuary article for applications applies, and the right accrues from the date of the judgment, and that in any case, the application of 1925 is not a revival of the application of June 9, 1924, which was not accompanied by a succession certificate as the application of 1925 was.