GHULAM NASIR-UD-DIN Vs. HARDEO PRASAD

JUDGEMENT

(1.) THE North-Western Bank Company, Limited, obtained a decree against four persons--Hamza Ali Khan, Khwaja Ghulam Nasir-ud-din Khan, Musammat Aghai Begam and Mogal Jan, judgment-debtors, on the 24th of December, 1897. Hamza Ali Khan died and Faiz-ud-din, Aftab Ali and the three remaining original debtors have been put on the record as his heirs. An appeal was filed to this Court and that appeal was decided on the 7th of February, 1900. THE decree passed by the Subordinate Judge of Meerut was to a certain extent modified. Execution appears to have been first taken out on the 15th of January,1898. Several other applications in execution followed. One of these was an application for execution made in the court of the District Judge of Delhi on the 8th of July, 1904. This application was made within time, and, as a result, some property situated in Delhi was attached as the property of Aghai Begam, judgment-debtor. Upon attachment, two persons, Hafiz Khairati and Hafiz Ahmad Husain, objected. THE objection filed by them was reject-ed on the 10th of March, 1905. THEy followed up the objection by a declaratory suit against the Bank, decree-holder. THEy also applied for an injunction. This was granted by the District Judge of Delhi, and under this injunction the sale of the property in suit was stayed until the decision of the suit. On the 29th of June, 1907, the Delhi court gave its decision in the declaratory suit, and on the 9th of July, 1907, the pleader for the Bank, decree- holder, put in an application in this Court, stating that as the attached property has now been released, the Bank will find out new property and then apply for execution, and meanwhile the case might be shelved, and an order was passed sending it to the record-room. On the 14th of April, 1910, Hardeo Prasad, who had in the interim purchased the decree from the Bank and had got his name entered on the record as decree-holder, instituted proceedings for attachment and sale of certain movable and immovable property said to belong to the judgment-debtors. Khwaja Ghulam Nasir-ud-din Khan and Musammat Aghai Begam, judgment- debtors, took objections. THEy urged, that as no application had been made by the decree-holder since the 8th of July, 1904, the present application must be considered as out of time and barred by limitation. THEy also took objection that Section 15 of Act No. IX of 1908 could not be utilized by the decree-holder in computing the period of limitation. THEy raised other objections, but it is unnecessary to go into them so far as the present appeal is concerned. THE lower court held that if the Act of 1877 applied to the case, (1) the decree-holder s application for execution made to the court of Delhi and the injunction which was issued by that court brought the case within Article 178 of the Limitation Act ; of 1877, and (2), as the present application was within three years from the date of the final decision of that suit, it was within time. If the new Act governed the case, then the Court held that the .period from the 6th of April, 1905, to the 26th of January, 1909, must be excluded from computation. In either case the present application was well within time. THE Subordinate Judge rejected the objections of the judgment-debtors. THE judgement-debtors have now come in appeal to this Court, and they contend that the application is time-barred and that the court was wrong in holding that the injunction issued on the 6th of April, 1905, could be utilized by the decree-holder in saving limitation.

(2.) WE are of opinion that the application for execution instituted on the 14th of April, 1910, may justly be reckoned as within time. The date of the decree sought to be executed and the time from which the period of limitation began to run in this case was the 7th of February, 1900. At that time Act XV of 1887 was the Act governing limitation of suits and applications, and the Article applying to the present proceeding would be Article 179 of the second schedule of that Act. No question has ever arisen regarding the application made to the court of Delhi on the 8th of July, 1904, as being an application which was time-barred. The flow of limitation was obstructed by the objection decided on the 3rd of December, 1904. It is true that that objection was rejected on the 10th of March, 1905, but the objection was followed up by a declaratory suit, also the act of Hafiz Khairati and Hafiz Ahmad Husain. Next in order came the injunction which was granted on the 6th of April, 1905. This was also an act of the persons above mentioned and not an act of the decree-holder. It was not until the 29th of June, 1907, that the obstructions thus caused were removed and the period of limitation began to run freely again. This Court, in Behari Lal Misir v. Jagannath Prasad (1906) I.L.R. 28 All. 651. under similar circumstances, held that the Article which in such a case applies is Article 178 of the second schedule of the Limitation Act, and that the decree-holder s right to apply accrued, when by the decree the sale of a share of two villages in that case was set aside. "The present appeal, "the learned Judges went on to say," having been made within three years from that day was there- fore within time." Following the precedent therein laid down, the present proceeding instituted on the 14th of April, 1910, was well within three years of the 29th of June, 1907. On the 1st of January, 1909, Act No. IX of 1908 came into force, vide Section 1, Clause 3 of Act No. IX of 1908, and it has been contended that the present case should be governed by Article 182 of the first schedule of the Act. Even if so, it appears to us that the lower court was quite right in holding that Section 15 of the Act saves the decree-holder from limitation being set up against him under Act No. IX of 1908. Section 14, which corresponded with Section 15 of the present Act, made provisions for suits only, and the present Act in computing the period of limitation prescribed for either suits or applications for execution of a decree where execution has been stayed by injunction, the time of the continuance of the injunction shall be excluded in favour of the decree-holder. It will be remembered that in this case, au injunction was granted on the 6th of April, 1905, and lasted until the 26th of January, 1909. If this period be excluded in computing the period of limitation, the present application is well within the time granted by Article 182 of Act IX of 1908. It was contended that the injunction issued by the Delhi court simply prohibited the sale of the property by Hafiz Muhammad Khairati and Hafiz Ahmad Husain, that it did not stay the execution of the decree altogether. In our opinion there is no force in this contention. A decree- holder is not bound to search out and to proceed against all property of which his judgment-debtor may stand possessed. This would only encourage the setting up of 60 years claim to each property as attached. If he is executing his decree against property which he bond fide believed to be the property of his judgment- debtor, he is executing his decree within the meaning of the law. For this reason we hold that the application made by the decree-holder is not time-barred. It is unnecessary to consider the other pleas taken in this appeal, and we dismiss this appeal with costs.