NATHUBHAI KUSANDAS Vs. PRANJIVAN LALCHAND

JUDGEMENT

(1.) THE decree, execution of which has been held by, both the lower Courts to be barred by the law of limitation, was one for partition of immoveable property passed on the 30 of June 1900, and directed that the plaintiff should not be entitled to execute it until he had paid Court fees. THE present application for execution was made on the 27 of June 1906 by the plaintiff, who with it paid the Court fees into Court in fulfilment of the condition precedent to his right to execution. Prima facie the application is barred, having been made more than three years after the date of the decree. But the application is sought to be brought within time by reason of an application made for execution on the 27 of June 1903. THE lower Courts have held that that application does not help the plaintiff, because it was not one made in accordance with law, as required by Art. 179 of Schedule II to the Limitation Act. In the present case what the decree directed was that the plaintiff should not be entitled to execution-that is, to the partitioning off of his share and its allotment to him-unless he paid the Court fee on that share, THE payment was prescribed as a condition of the partition, not to the making of an application for it. THEre was nothing in the decree to prevent the plaintiff from applying for execution on one day and paying the Court fee on any day subsequent before the disposal of the application by the Court. THE application itself cannot be said to have been not in accordance with law merely because it was not accompanied by a payment of the Court fee. This view is in accordance with the principle of the decision of this Court in Narayan Govind v. Anandram Kojiram (1891) I.L.R. 16 Bom. 480 which is followed by the Madras High Court in Syed Hussain Saib Rowthen V/s. Rajagopala Mudaliar (1906) I.L.R. 30 Mad. 28. But it is urged for the respondents that the application of the 29 of June, 1903 was not in accordance with law, because it asked the Court to do what it was not competent to do-that is, it asked the Court to order partition to be effected without payment of the Court fee directed by the decree as a condition of such order. And in support of this argument Chattar V/s. Newal Singh (1889) I.L.R. 12 All. 64, Munawar Husain V/s. Jani Bijai Shankar (1905) I.L.R. 27 All. 619, Langtu Pande V/s. Baijnath Saren Pande (1906) I.L.R. 28 All. 387 are cited. It is true that, according to these decisions, as also according to Pandarlnath Bapuji V/s. Lllachand Hatibhai (1888) I.L.R. 13 Bom. 237, an application for execution, which asks the Court to do what it has no power under the decree to do, is no application for execution at all. THE reason is that an application for execution of a decree to be in accordance with law must ask for something within the decree and not outside it. Applying that test here, what the plaintiff asked the Court to do by his application of the 29 of June 1903 was not outside the decree. It was within the competence of the Court to order partition on Court fee being paid as directed by the decree. THE decree directed that no partition should be effected in execution unless Court fee were paid. Upon the plaintiff's application it was competent for the Court to order that the execution should begin on Court fee being paid within a certain date. No doubt the Court passed no such order, but dismissed the application for execution on the ground that Court fee had not been paid; but all the same it was competent to the Court to pass an order for payment prescribing a date for it. On these grounds the darkhctst must be held to be within time. THE decree is reversed and the darkhast remanded for disposal according to law. Costs of the darkhast hitherto incurred including those of this second appeal to be paid by the respondents.

(2.) MR. Shah argues that the point on which I have held that the present darkhast is not barred by limitation is res judiuata inasmuch as this very point was substantially decided by this Court against the present appellant in Second Appeal No. 119 of 1904. That second appeal arose out of an application for execution of this very decree, which both the Courts below had dismissed because the appellant had not paid the Court fee. The second appeal was decided by Crowe J. and myself, and we confirmed the order of the lower Courts dismissing the application. There is no written judgment. MR. Markand Mehta for the appellant reminds me that the ground on which Crowe J. and I confirmed the order was that the plaintiff had no right to execution without payment of Court fee. And it was so, if I recollect rightly. That was no adjudication either that the application then made or any previous application was not in accordance with law for the purposes of limitation or that the condition in the decree as to Court fees was of such a character that the Court fee must be paid first and the application for execution could only be made after-wards.