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Pandarinath Bapuji Vs. Lilachand Hatibhai - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtMumbai
Decided On
Judge
Reported in(1889)ILR13Bom237
AppellantPandarinath Bapuji
RespondentLilachand Hatibhai
Excerpt:
limitation act (xv of 1877), article 179, clause (4)--execution of decree-application for execution--application for a relief outside the decree--'step in aid of execution.' - - clause (4) of article 179 must clearly be one made in accordance with law, and asking to obtain some relief given by the decree and to obtain it in the mode that the law permits......chitko juvekar v. vithal purshotam i.l.r. 12 bom. 23 but even though that is so, the present application for execution west, we think, be held to be barred by limitation. it will only be within time if the last preceding application, dated the 22nd january, 1887, was an application, within the meaning of clause (4) of article 179 of schedule ii of act xv of 1877, made in accordance with law to the court for the execution, or to take some step in aid of the execution, of the decree. we are unable to regard it as such, for it does not ask for the recovery of the rs. 156 decreed to the plaintiff, or state that the plaintiff is willing to execute the deed of sale which by the decree he was required to execute; but it asks for the absolute delivery to him of a house, which is.....
Judgment:

Birdwood, J.

1. The consent decree made in this case provided that the defendant should pay the plaintiff Rs. 156 within one month, and that the plaintiff should execute a deed of sale to the defendant. The District Judge rightly held that the plaintiff could not have claimed the money, and could not, therefore, have made any application for execution till the end of the month. The decree in such a case must be held as speaking, not from the date on which it was made, but from the date on which the plaintiff could demand fulfilment--Narayan Chitko Juvekar v. Vithal Purshotam I.L.R. 12 Bom. 23 But even though that is so, the present application for execution West, we think, be held to be barred by limitation. It will only be within time if the last preceding application, dated the 22nd January, 1887, was an application, within the meaning of Clause (4) of Article 179 of Schedule II of Act XV of 1877, made in accordance with law to the Court for the execution, or to take some step in aid of the execution, of the decree. We are unable to regard it as such, for it does not ask for the recovery of the Rs. 156 decreed to the plaintiff, or state that the plaintiff is willing to execute the deed of sale which by the decree he was required to execute; but it asks for the absolute delivery to him of a house, which is nowhere in the decree given to him; that is, it asks for a relief outside and beyond the decree altogether. Such an application could not have been considered as an application to execute or further the execution of the decree in any way; and it was indeed rejected by the Court on this very ground. The application for execution contemplated in. Clause (4) of Article 179 must clearly be one made in accordance with law, and asking to obtain some relief given by the decree and to obtain it in the mode that the law permits. An application might be incorrect in some respects, as in the case of Ramanandan Chetti v. Periatambi Shervai I.L.R. 6 Mad. 250 where there was a wrong calculation of interest and costs. But such an application would be one furthering execution, since it asks for what the decree gives, and so could be accepted, and, when the mistake has been corrected, acted upon; whereas in the present case, the application of the 22nd January, 1887, asks for what the decree nowhere gives, and unless it had been substantially amended by substituting an entirely new prayer no relief what-ever provided by the decree could have been granted on it. It could not be contended that if a decree gave plaintiff Survey No. 1, an application to obtain Survey No. 2 would be an application to execute the decree. No more can it be contended that where a decree gives the plaintiff the right to recover Rs. 156, an application to be placed in possession of a house would be an application for execution of that decree, merely because it is styled so. We must, therefore, hold that the present application is barred by time, having been presented more than three years after the only other application in the case made according to law. We reverse the District Judge's order, and restore that of the Subordinate Judge, rejecting the application for execution; but we do so without costs in this and the lower appellate Court, as the objection taken in this Court to the application of the 22nd January, 1887, was not taken in the lower Courts.


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