NABIBHAI VAZIRBHAI Vs. DAYABHAI AMULAKH

JUDGEMENT

(1.) The present application is made by the judgment-debtor who was the 4th defendant in the suit. The suit was tiled by the plaintiffs to recover upon two documents, and the Court in. which the suit was instituted was the Court of Kalol in the territories of His Highness the Gaikwar of Baroda. There a decree was passed in the plaintiffs favour, and ultimately the plaintiffs applied that this decree should be transferred for execution to the Court of the Subordinate Judge of Ahmedabad. That transfer was accordingly made, and the darkhast has been heard by the learned Subordinate Judge of the First Class.

(2.) The only one of his findings with which we are now concerned is the finding that the execution of this decree is not barred by time. That finding is challenged by Mr. Thakor on behalf of the present applicant, and it seems to me that Mr. Thakor s contention must be allowed.

(3.) There is some uncertainty as to what the law of limitation is in Baroda with regard to the execution of such decrees. But this much is agreed between the parties that the period of limitation is either six years or twelve years. Whether it is the one or the other is a matter of no moment. I will assume in favour of the opponent that it is six years. The decree was obtained on the 11th December 1909. Admittedly the first application made for execution was not made till 1913. That application was, therefore, within time according to the law in Baroda. It was admittedly beyond time according to the law in British India, which prescribes a period of three years for such an application. Now suits and applications must be brought within the period prescribed by the local law of the country within which the suit or the application is brought, that is to say, it is the lex fori which governs. That being so, this decree became, in my opinion, incapable of execution in British India after the lapse of three years from the date the decree was made. And since the law to be applied is the law of British India, it is no answer to say that the decree was still alive and capable of execution in Baroda when the order was made transmitting it for execution to Ahmedabad. The learned Judge has, I think, misunderstood Sir Charles Sargent s decision in the case of Husein Ahmad Kaka v. Saju Mahamad Sahid (1890) 15 Bom. 28 which he has construed as authority for the proposition that he had no power to determine whether execution was barred or not, being bound by the order of the transferring Baroda Court. That decision is of no authority in regard to a decree ordered for transmission by a foreign Court. The very ground of the decision is that there is outstanding an order of a competent Court binding the parties and directing the execution of the decree. No such order as this either was made, or could have been made, by the Baroda Court so as to bind the Ahmedabad Court or the parties litigating in that Court. It was, therefore, competent to, and obligatory upon, the learned Subordinate Judge to consider and determine this question of limitation.