MT. BHURIBI Vs. RAHMATBI

JUDGEMENT

(1.) SUBHEDAR , A.J.C. 1. This is an appeal by a judgment-debtor arising out of execution proceedings. The facts are shortly these: In Civil Suit No. 101 of 1920 the respondent decree-holder hid claimed possession of certain properties after partition. The last decree in the suit was passed by this Court in second appeal No 232 of 1922 on 5th April 1923 and it directed that the plaintiff's claim to get 19 144th share is subject to the payment of Rs. 131-15-1 as per proportiontae share of the dower debt.

(2.) THE first application for execution was made by the plaintiff decree-holder on 11th August 1923 without making any deposit of Rs. 131-15-1 for payment to the defendants judgment debtors. On 5th April 1921 the executing Court directed the plaintiff decree-holder to pay the amount by a certain date; but he never paid the amount and the application was dismissed for default of the parties' appearance on 12th July 1924. On 17th December 1926 a fresh application was made by the plaintiff decree-holder for execution. But it was contended by the judgment-debtors that the application was barred by time because it was filed more than three years after the passing of the decree by the High Court. The decree-holder stated that the application was within time because of the first application for execution which was made by her on 11th August 1923. The judgment-debtors replied that that application was not an application in accordance with law because it was not accompanied with the deposit of the amount that the decree-holder had to pay to them.

(3.) BUT assuming that the payment of the amount was a condition presedent to the making of the application, the first application was still valid in spite of the fast that no deposit was made. At p. 1005 of his Law of Limitation, Edn. 4, Mr. Rustomji observes as follows: If execution of a decree is conditional on prior payment (by the decree holder) of court-fees or (in case of a redemption suit) of the mortgage-debt or on discharge by the decree-holder of an incumbrance, in such cases an application by the decree-holder for execution without fulfilling the condition is nevertheless in accordance with law, it being open to the Court, on such application, to order execution on previous-compliance (by the decree-holder) of the condition imposed by the decree. The fact that the application is dismissed for non-fulfillment of the condition is for purposes of limitation immaterial.