CHHOTO RAKHAL DAS MAJUMDAR Vs. JOGENDRA NARAIN MOZUMDAR

JUDGEMENT

(1.) The substantial question of law which, calls for decision in this appeal is, "whether an application presented on the 21 December, 1907, for execution of a decree made on the 6th December, 1904, is. barred by limitation.

(2.) The Court below has held that the application is not barred, because the decree was amended on the 4 January 1905. This view has been assailed on behalf of the judgment- debtor on the ground that time runs against the decree-holder from the date of the judgment, and that as the amendment related merely to costs and did not effect the substantial portion of the decree, the decree-holder is not entitled to apply within three years from the date of the amendment for execution of the decree in so far as it relates to possession of the properties. On behalf of the decree-holder, it has been contended that although the application was described as one for amendment, it was really in the nature of one for review of judgment and that time runs consequently from the date when the application was granted. To determine which of these contentions should prevail, it is necessary to refer for a moment to the proceedings in the suit.

(3.) It appears that in the course of the suit, the parties filed a petition of compromise in which they settled some of the matters in dispute and agreed to refer others to arbitrators who were expressly authorised to determine the question of costs. The arbitrators submitted their award on the 23 November 1904, in which they directed, among other things, that each party should bear his own costs of the suit. On the 6 December the Subordinate Judge delivered judgment in substantial accordance with the award which had, meanwhile, been amended upon minor points by the consent of parties. Up to this stage, it appears to have been overlooked that costs would be incurred after the judgment in the preparation of the decree, inasmuch as tinder article 45 of schedule I of the Stamp Act, the decree which effected a partition, would. have to be stamped according to the value of the separated share of the property. On the 8 December, the plaintiff was called upon by the Court to deposit the necessary stamp. He carried out this order, and the decree was drawn up and signed on the 3 January 1905. On the 4 January, the plaintiff applied that directions might be given for the realisation of the stamp duty from the defendants according to their respective shares. As there was no opposition, the Court allowed the application, and a clause was added to the decree, on the same day, under which the plaintiff was authorised to recover a proportionate share of the stamp duty from the defendants. We are informed that one of the defendants now appellant before this Court, paid his share amicably and on the 14 January, 1905, the decree-holder applied to the Court under Section 258 of the Civil Procedure Code to enter satisfaction of the decree pro-tanto this was done and the amount was certified to have been duly paid. The question now arises, whether in the events which have happened, the present application for execution is barred by limitation.