RAJANI BANDHU CHATTERJEE Vs. KALI PRASANNA CHATTERJEE

JUDGEMENT

(1.) This is an appeal by the judgment-debtors against an order in execution of a decree. The decree was made by the trial Court on the 3 July, 1906, and was successively confirmed by the lower appellate Court and by this Court on the 10 September, 1907, and 9 March, 1910. In 1912 the decree-holder made the first application for execution of the decree which directed the judgment-debtors to carry out certain works and to restore the disputed property to its original condition. The application was dismissed by the trial Court on the 17 January, 1913. On appeal the District Judge directed that a Commissioner should be appointed with a view to carry out the terms of the decree, and a Commissioner was accordingly appointed. He submitted a report to which exceptions were taken. These were overruled on the 9 July, 1913, by the District Judge who accepted the report of the Commissioner and directed that the execution should take place on its basis. The decree-holder, however, did not proceed with the execution and the proceedings were apparently discontinued. On the 16 September, 1914, the decree holder made the second application for execution. This application was based on the assumption that the decree-holder was not bound by the determination of the District Judge on the previous application that execution should proceed on the basis of the report of the Commissioner, The result was that the judgment-debtors objected. On the 15 March, 1916, the trial Court directed that execution should take place on the basis of the order of the 9 July, 1913. The decree-holder was dissatisfied and appealed. The appeal, as might have been expected, was dismissed on the 3 July, 1916. A second appeal was preferred to this Court with the result that it was dismissed on the 9 February, 1917. The obvious course for the decree-holder would have been, after the dismissal of the appeal by this Court, to proceed with the execution as was directed by the Court of first instance. No steps, however, were taken till the 23 January, 1920, when he presented the third application for execution. He was forthwith met with the plea of limitation on the part of the judgment-debtors. The Courts below have held that the application was not barred by limitation. We are of opinion that the view taken by the lower Courts cannot be supported.

(2.) In the first place, it is plain that Art. 182 of the schedule to the Limitation Act is of no assistance to the decree-holder. He is not able to show that within three years of the date of the present application that is, subsequent to the 23 January, 1917, he applied to the proper Court to take a step-in-aid of execution. The fact that he brought an appeal to this Court on the 9 February, 1917, against the decision of the District Judge could not clearly be treated as an application to the proper Court to take a step-in-aid of execution. The expression "proper Court" as defined in Explanation II of Art. 182 does not apply to a case such as this.

(3.) In the next place, it is clear that Section 14 of the Limitation Act is of no avail. Sub- section (2) to Section 14 which has been invoked on behalf of the respondents, provides that "in computing the period of limitation prescribed for any application the time during which the applicant has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of Appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it." It cannot seriously be maintained that the previous application for execution could not be entertained by the Court from defect of jurisdiction or other cause of a like nature. The Court dealt with it on the merits and came to the conclusion that the judgment-debtors and the decree-holder were alike bound by the order made in the course of the first execution proceedings. Li these circumstances, it is difficult to appreciate how the decree-holder can possibly escape the bar of limitation.