BAI UJAM Vs. BAI RUKHMANI

JUDGEMENT

(1.) This is an appeal by the decree-holder who obtained a decree against the present respondent, and made an application for executing it on the 6th of August 1908. That application was made against the defendant and the surety The present application was made on the 12th of August 1911. The judgment-debtor objected to the application on the ground of limitation. In both the lower Courts this plea has succeeded, and the Darkhast has been dismissed as being time- barred. In the second appeal before us it has been contended by the appellant that the application is in time on various grounds. It is not necessary to deal with all the grounds urged in support of the appeal, as it is possible to decide the, appeal on one ground only. It is an admitted fact in the case that the present defendant and the surety appealed against the order made by the Court of first instance on the 30th November 1908 directing execution to proceed as to a part of the decree, and in that appeal they obtained an order for staying the execution of the decree which remained in force from the 20th January to the 18th February 1909. It is contended on behalf of the appellant that under Section 15 of the Limitation Act this period ought to be deducted from the period of limitation, and that, if that period is deducted, the present application is in time. We think that this contention ought to be allowed. Under .s. 15, Sub-section (1), of the Limitation Act the appellant is clearly entitled to have this time excluded in computing the period of limitation in this case. The lower appellate Court, while dealing with this point, thought that as the order of the 30th November 1908 related only to the recovery of costs, that deduction of time ought not to be made. We think that it is perfectly immaterial for the purposes of the present point as to whether the order of the 30th of November 1908 related only to a part of the decree. If the period during which the execution of the , decree had been stayed is excluded, the present application is clearly within time.

(2.) We hold, therefore, that the application is in time. The order of the lower appellate Court is reversed and the case remanded for disposal according to law.

(3.) All costs to be costs in the application.