BUDHU KHAN Vs. ABONER

JUDGEMENT

(1.) This appeal relates to the execution of a decree of this Court which was passed in favour of the decree-holder who had not paid the proper Court-fee in the Subordinate Courts. This Court, therefore, ordered that the decree will not issue unless the amount of Court-fee payable on the plaint was deposited by the plaintiff and that when it was deposited, it will be included in the costs of the Court below. The judgment was delivered on the 30 January 1923, and without payment of Court-fee the plaintiff applied for the execution of the decree on 30 January 1926. This application was within time from the date of the judgment of this Court. Subsequently, on 2 February, 1926, the plaintiff paid the deficiency in Court-fee here. She desires to recover both the amount paid by her on 2nd February 1926, and the costs she had incurred and already paid prior to 30th January 1926. I cannot agree with the view of the lower Court that the decree became capable of execution on 2 February, 1926, and that three years limitation was to run from that date. For a case like the present the analogy of a partition decree should be applied. A decree in a partition suit is not formally drawn up until the stamp duty is recovered, but for the purposes of limitation the period runs from the date of the judgment and not from the date on which the Court-fee has been paid: see Kishori Mohan Pal V/s. Provash Chandra Mondal . The period of limitation must run from the date of the judgment of this Court.

(2.) From that point of view the plaintiff is entitled to recover whatever she had incurred up to the date of her application of the 30 of January 1926. The Court- fee, however, she paid subsequent to the expiry of the period of limitation, and, in my opinion, she could no recover that amount. That amount is no doubt, included in her application of 30 January 1926, but she was not entitled to recover it on that date as it has not been paid by her. Subsequently, after she paid the amount, execution of the decree was time barred.

(3.) I hold that she is entitled to execute the decree for Rs. 111-8-0 and not for the sum of Rs. 149-2-8 paid by her as deficiency in Court-fee after the period of limitation for the execution of the decree of this Court has expired. I decree this appeal in those terms without any order as to costs.