P R SAMBASIVA AIYAR Vs. MUHAMAD HUSSAIN ROWTHER

JUDGEMENT

(1.) The object of the 1st respondent s petition to the Munsif was to get satisfaction of the decree recorded on the ground that the 3rd defendant discharged the amount due under it in 1906. The petition was presented in only 1910. Prima facie, the application was barred. We fail to see how Section 14 or Section 15 of the Limitation Act could save the application. In fact, the 1st respondent, clearly stated before the Munsif that he did not rely on either of those sections. The prior proceedings relied on to attract Section 14, had quite a different object in view. The fact that the 1st respondent then stated that the 3rd defendant had discharged the decree debt, would not make the section applicable. The 2nd defendant was admittedly aware of the alleged discharge in 1908. We cannot understand how the Subordinate Judge could imagine that Section 18 could apply in the circumstances. The 1st respondent contends that the decree against the 1st and 3rd defendants and the subsequent revised decree with regard to the 2nd defendant, should be treated as one consolidated decree, and that his application was put in within three months from the date of the second decree and was, therefore, within time, and he relies on the judgment of the Privy Council in Ashfaq Husain v. Gauri Sahai 9 Ind. Cas. 975 : 33 A. 264 : 8 A.L.J. 332 : 15 C.W.N. 370 : 9 M.L.T. 380 : 13 C.L.J. 351 : 13 Bom. L.R. 367 : 4 Bur. L.T. 121 : 21 M.L.J. 1140 (P.C.). There the suit was on a mortgage and their Lordships held that the plaintiff was entitled to a joint decree for sale against all the defendants so as to enable the Court to sell the property effectually. It was on this ground that the two decrees were treated as a single decree and the application for sale, which was within three years from the date of the 2nd decree, was held to be not barred. This case is not similar to the one before the Privy Council. A decree for money may be passed against different defendants at different times, and there is no reason for treating the two decrees as one. The result of upholding the 1st respondent s contention, would lead to the anomaly of a decree which was passed in 1909 as capable of being discharged in 1906.

(2.) The 1st respondent contends that he is entitled to resist execution by the 2nd plaintiff Ananda Natesa Aiyar, who, he says, is not the real assignee of the decree. If so, his proper course is to resist any application that the assignee may present to execute the decree.

(3.) We reverse the order of the lower Appellate Court and restore the Munsif s order with costs here and in the lower Appellate Court.