VIRCHAND KAPURCHAND Vs. MARUALAPPA

JUDGEMENT

(1.) The appellant is a decree-holder who is seeking to execute a decree obtained by him on July 19, 1921, in Suit No. 236 of 1921 in the Court of the First Class Subordinate Judge, Bijapur, against defendants Nos. 1 and 2. It was a decree for money and was passed in terms of an award. It made the decretal amount payable by instalments and directed that in default of payment of two instalments the whole amount should become recoverable at once. Two defaults in the payment of instalments were committed so that the whole amount became payable on May 1, 1923. Thereafter five darkhasts have been filed, the present one being the fifth, darkhast No. 333 of 1939 filed on May 29, 1939. The previous darkhasts were as under ; Darkhast No. 106 of 1924 filed on March 10, 1924, and disposed of on June 26, 1928; Darkhast No. 375 of i929 filed on August 7, 1929, and disposed of on June 26, 1931; Darkhast No. 753 of 1931 filed on November 26, 1931, and disposed of on April 10, 1934; and Darkhast No. 490 of 1934 filed on July 11, 1934, and disposed of on Jan. 19, 1939. When the present darkhast was filed the question arose whether it was time-barred under Section 48 of the Civil Procedure Code, limitation having begun to run from May 1, 1923. The decree-holder submitted a statement purporting to show that he was entitled to exclude certain periods. Those periods he classified under four heads, two of which have now been relied on by the learned advocate for the appellant. The first comprises "a period of about two and a half years, being the aggregate of the periods during which the first darkhast was wholly or partially stayed by the Muddebihal Court and the Court of the Joint Subordinate Judge at Bijapur. It is contended that these periods must be excluded when calculating the period of limitation under Section 15 of the Indian Limitation Act, 1908, the provisions of which would apply, as held in Ramgopat Bhutada V/s. Sidram Aunayya? The second item is another period of about two years during which the fourth darkhast No. 490 of 1934, was pending before the Collector. It is contended that under sub-paragraphs (1) and (3) of para. 11 of Schedule III of the Civil Procedure Code this period also must be excluded. The learned trial Judge has held against the decree-holder on both these points.

(2.) The darkhast was filed on May 29, 1939, and as the period of twelve years from May 1, 1923, was over on April 30, 1935, the decree-holder has to show that an aggregate period of four years and one month should be excluded from calculation. If, therefore, he succeeds in proving that he is entitled to two and a half years under one head and to two years under another head of his statement, exhibit 38, the present darkhast will be within time. In Ramgopal Bhutada V/s. Sidram Aunayya (1942) 45 Bom. L.R. 234 it was held that the provisions of Section 48 of the Code are controlled by Section 15 of the Act, which provides that in computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order shall be excluded. During the pendency of the darkhast No. 106 of 1924 there was an order of the Muddebihal Court made in civil suit No. 88 of 1925 staying execution, the order being passed on March 23, 1925, and finally withdrawn on March 19, 1926. Again, during the pendency of the same darkhast there was an order of the Bijapur Coast in civil suit No. 227 of 1925 staying execution to the extent of four-fifths of the property. That order appears to have been made at the instance of the sons of the first judgment-debtor. Again, during the pendency of the same darkhast there was an order made in civil suit No. 423 of 1926 staying execution to the extent of three-fifths of the property. That suit was also brought by certain sons of the first judgment-debtor. The period of the stay under the order in civil suit No. 227 of 1925 was from March 22, 1925, to December 5, 1926, i.e. a period of one year, eight months and twelve days, and the period of the stay under the last order above mentioned was from March 15, 1927, to January 31, 1928, a period of ten months and sixteen days. It is, however, contended on behalf of the respondents that of the three orders of stay the last two stayed not the whole of the pending execution but stayed it only to a limited extent, viz. to the extent of four-fifths of the property in one case and three-fifths of the property in the other, and that, therefore, it could not be said that in these cases the execution was stayed, that is, wholly stayed, which is what is meant by the expression " execution of which has been stayed by injunction or order " in Section 15 of the Indian Limitation Act.

(3.) Mr. Madbhavi on behalf of the appellant contended that it was enough that execution was stayed with regard to a major part of the property affected, and he has relied on Bai Ujam v. Bai Ruxmani (1913) I.L.R. 38 Bom. 153 Ghulam Nasmud-din V/s. Hardeo Prasad (1912) I.L.R. 34 All. 436 and Gurudeo Narayan Sinha V/s. Amrit Narayan Sinha (1906) I.L.R. 33 Cal. 689 as supporting his argument. The first was a case in which on an application to execute a decree having been made against the defendant and her surety, the Court, on November 30, 1908, held that the surety was liable only for costs and therefore, directed the execution to proceed as to a part of the decree. The surety appealed, and pending the appeal, the execution of the decree was stayed from January 9 to February 18, 1909. Thereafter the decree-holder again applied to execute the decree. The lower Court held that the second application was barred by limitation, having been made more than three years after the date of the first application. It was held that the second application was within time, for the applicant was entitled to exclude the period, during which the execution of the decree had been stayed in computing the period of limitation for the second application. In the judgment there is an observation made by Shah J. with reference to the view taken by the lower appellate Court that the order of the Court of first instance made on November 30, 1908, directing execution to proceed as to a part of the decree related only to the recovery of costs and that deduction of time ought not to be made. Mr. Justice Shah observed that it was perfectly immaterial for the purposes of the point under consideration as to whether the order of November 30, 1908, related only to a part of the decree, and that if the period during which the execution of the decree had been stayed was excluded, the application was clearly within time. On reference to the facts of this case it seems to be clear that what was stayed from January 9 to February 18, 1909, was the execution of the whole decree and not any part of the decree. The order of November 30, 1908, no doubt related only to the recovery of costs, but that did not alter the fact that the execution of the whole decree was stayed on the surety having appealed. It seems to us, therefore, that the observation of Shah J. referred to above is not one which supports Mr. Mad-bhavi's contention in the present case.