NARSINGRAO KONHER INAMDAR Vs. BANDU KRISHNA KULKARNI

JUDGEMENT

(1.) This is an application in execution of a decree, and the facts and dates relevant to the appeal are these. The parties having referred their dispute to arbitration, an award was made by the arbitrators. On the 17th November 1897, the following order was made by the learned Subordinate Judge : "The plaintiff sues to obtain a decree on an award filed with the plaint. The defendants admit the claim. I order that the award be filed and a decree passed in accordance therewith." But the only attempt made by the Court to draw up the decree thus ordered is recorded in the following direction which was given on the 17th November 1897: " This suit coming on for final hearing on the 17th November 1897 before Rao Bahadur Gangadharrao Vishnu Limaye, First Class Subordinate Judge, in the presence of Mr. Vithalrao Kulkarni, pleader on behalf of plaintiff and of Mr. Bhaskarrao Manerikar, pleader on behalf of defendants Nos. 1 and 2, it is ordered that the award be filed and a decree be made in accordance with it." Thereafter an application to execute the decree was made by the successful plaintiff, who was met by the defendants objection, filed on the 21st July 1898, that no executable decree had as yet been drawn up. That, apparently, was then recognised by the plaintiff who applied that the decree might be amended so as to bring it in accordance with the award, and a summons was issued for that purpose. On the 28th January 1899 the decree was amended so as to bring it into consonance with the directions of the award. This present application for execution was made on the 2nd December 1909. The actual provisions of the decree under execution are fully set out in the judgment of the learned Judge below, and need not now be recapitulated here.

(2.) Two objections are taken to the lower Court s order on behalf of the present appellants, the defendants Nos. 1 and 2. Both of these objections refer to the question of limitation, and the first of them relates to the two sums of Rs. 575 and Rs. 6,000, which under the decree were to be paid forthwith. I say they were to be paid forthwith because the decree directed their payment, and provided no particular period within which, or before which, the payment was to be recovered. Now with regard to these particular sums the point is a simple one. The applicant is within the twelve years allowed to him if time is to be reckoned from the 28th January 1899, but he is beyond twelve years if the starting point is to be accepted as the 17th November 1897. I cannot myself doubt that the correct starting point is the 17th November 1897. The decree was made under the old Code of 1882, of which Section 205 enacted that "the decree shall bear date the day on which the judgment was pronounced." That language seems to me to be imperative, and indeed to be designed to meet precisely a case of this sort where owing to certain oversights or irregularities a delay has intervened between the delivery of the judgment and the formal drawing of a correct decree. But if I am right in thinking that the decree is to be referred to the 17th November 1897, and not the 28th January 1899, than admittedly the application is out of time in regard to the sums I have specified. In my opinion the recovery of these two sums is now barred by limitation.

(3.) But then a more substantial point was taken under the same Statute, and it was contended that the application as a whole is barred by limitation. The argument was put in this way. When the application was made the new Code for Civil Procedure was in force, and since that Code prescribes procedure only, the application must be taken to have been subject to its provisions. One of these provisions is Order XXXIV, Rule 5 which lays down that where the payment required of the defendant is not made, the Court shall, on application made in that behalf by the plaintiff, pass a decree that the mortgaged property, or a sufficient part thereof, be sold, and that the proceeds of the sale be dealt with as mentioned in the preceding rule. Therefore, the argument continues, the present application must be treated as an application for a decree final for sale, and as such it is barred under Art. 181 of the Limitation Act, for the right to apply accrued when default in payment was made, and that is found to have been in 1902.