RUNGIAH GOUNDAN Vs. GNANJAPPA ROW

JUDGEMENT

(1.) In A.A.O. No. 111 of 1902.--This is a matter arising in execution of the decree in O.S. No. 74 of 1896 which was brought by the appellants against the respondents. The decree bears date the 10 November 1897 and the portion of the decree that is now sought to be executed runs as follows: "That in default of the defendants or any of them paying the sum of Rs. 47,852 with further interest thereon at 7per cent. per annum from date of suit to date of payment on or before the 10 May 1898, the hypothecated property hereinafter described or a sufficient portion thereof be sold and that the proceeds of such sale, etc." At the time of the passing of the said decree there was pending in the same court another suit No. 82 of 1896 which was brought by the respondents Nos. 1 to 3 against the appellants and in which they claimed Rs. 93,973-2-10 from the appellants. On the 27 November 1897 an application was made by respondents Nos. 1 to 3 (defendants) in O.S. No. 74 under Section 243, Civil Procedure Code for stay of execution of the decree therein pending the disposal of O.S. No. 82 and after issuing notice to the appellants an order was passed on 31 January 1898 directing stay of execution of the decree in O. S-No. 74 until the disposal of the said suit No. 82 of 1896. O.S. No. 82 of 1896 was tried and disposed of by the Sub-court on 23 December 1901. Thereupon, the present application (E. P. 418 of 1902) was made by the appellants on the 20 March 1902 praying for the sale of the hyothecated properties and the Subordinate Judge applying Art. 179 of schedule II, Indian Limitation Act, held that the application was barred by limitation and dismissed the same.

(2.) This was the very first application made for execution and it is admitted that no prior step in aid of execution had ever been taken. If, as held by the Subordinate Judge, the article of the law of limitation applicable to the case were 179, we should be constrained to uphold his decision and hold that the application was barred by limitation and that Section 15 of the Limitation Act could not be relied on for saving the application from the bar of limitation as the provision therein made for enlarging the ordinary period of limitation is applicable only to a suit, which word as defined in Section 3 of the Act must, for the purpose of limitation, be taken as excluding applications which are made in a suit. It may be that under Act IX of 1871 there was no necessity to extend the provisions of Section 16 of the Act (which corresponds to Section 15 of the present Act) to applications for execution of decrees, for under that Act though the execution of a decree might have been stayed by injunction or otherwise, the decree-holder might, for the purpose of the law of limitation, simply present a petition signifying his intention to keep the decree in force and such application though it was presented during the continuance of the order staying execution would give him a fresh starting point (vide paragraph 4, column 3; Art. 167, Schedule II, Act IX of 1871.) Under paragraph 4 of column 3. of Art. 179 of Act XV of 1877, corresponding to Art. 167 of Act IX of 1871, the application which would furnish a fresh starting point for limitation must be one made in accordance with law for execution or to take some step in aid of execution of the decree and not one made merely to keep the decree in force. Such being the case it is only reasonable and proper that in computing the period of limitation prescribed for an application for execution of a decree the time during which the attaching decree-holder prosecutes a suit under Section 283, Civil Procedure Code, or during which execution of the decree or a portion of it has been stayed by injunction or otherwise should be excluded: But as the law now stands " such course is not authorised" (Narayanan Nambi V/s. Pappi Brahmam I.L.R. : 10 M. 22 at p. 24) and it is not always possible to relieve the applicant from the bar of limitation by reviving an application which had been presented before the institution of the suit under Section 283 or before the order staying execution. It may be that as in the present case no application had been or could have been presented before the order staying execution. And in cases in which an application had been presented prior to the suit under Section 283 or to the order staying execution, it might have terminated in a manner which would make it impossible to revive the same, after the disposal of the suit or the expiration of the order as the case may be.

(3.) It has been argued on behalf of the appellants that even under Art. 179, the application is not barred by limitation inasmuch as the effect of the order passed under Section 243, Civil Procedure Code, staying execution of the decree was to postpone the date fixed for payment from the 10 May 1898 to the date of the decree in O.S. No. 82 viz., 23 December 1901 and reading the decree as thus varied limitation should be reckoned from the latter date under paragraph 6 of column 3 of Art. 179. It is impossible to accede to this argument for two reasons, An order relating to the stay of execution cannot be regarded as an order varying the decree either on review ( Section 623) or under Section 206 or under Section 210 which are the only sections under which a decree can be altered or varied by the court which passed the same. An order staying execution is passed not necessarily by the court which passed the decree, but by the court executing the decree as a proceeding in execution under Section 244. and the order is in reality only one postponing execution and not one varying the decree.