1. The question raised on this application is whether the execution of the decree is barred by the law of limitation.
2. It is clear on the facts that the application for execution made on June 27, 1932, was barred, unless the decree was kept alive either by an application for execution in accordance with law or by some step-in-aid of execution under Article 182 of the Indian Limitation Act. It is clear on the authorities that the plaintiffs are not entitled to the benefit of the time occupied between May 1925 and January 15, 1929, in the Phaltan Court, which is a foreign Court, nor can they avail themselves of the execution proceedings pending in that Court to support their contention.
3. The plaintiffs rely, firstly, on the application made to the Sholapur Court on July 8, 1929, for transfer of the decree to Kolhapur and, secondly, on the application for reconstruction of the decree on March 30, 1931, as a step-in-aid of execution. As to the first contention it is clear that that application cannot help the plaintiffs as on that day the decree was barred. Nor can the plaintiffs rely on it as res judicata as on that application notices were not issued to the defendants, and they never appeared. The question which has been forcibly argued by Mr. Coltman, and which seems to be the only question in this case is, whether the application for the reconstruction of the decree is a step-in-aid of execution. Mr. Coltman says that the plaintiffs stated in that application that they wanted the decree to be reconstructed for taking the execution proceedings to carry out the decree and therefore it is a step-in-aid within the meaning of Article 182, and relies in support of his argument on the case of Gulappa v. Erava. I.L.R. (1921) Bom. 269 : 23 Bom. L.R. 1013 It is obvious that if this is a step-in-aid, the present application is saved ; if it is not, the decree is barred. This is conceded by the learned Counsel.
4. Apart from authority, I have no difficulty in holding that the application for the reconstruction of the decree of March 1931 is not a step-in-aid of execution within the meaning of Article 182. The material portion
of the article is in these terms:
5. (Where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree or order.... 'The words 'in accordance with law' would govern the last phrase relating to 'step-in-aid.' A step-in-aid in accordance with law must be some step taken in aid of execution, and it is clear on the authorities that when an application is made relating to the execution of a decree but the applicant does not state what step he wishes to be taken, as was the case in Behari Lal v. Salik Ram I.L.R. (1878) All. 675 that application will not come under this clause. In Sheo Prasad v. Indar Bahadur Singh I.L.R. (1908) All. 179 it was held that mere payment of process fees on an application for execution unaccompanied by any application asking the Court to take some specific action will not have the effect of giving a fresh starting point for limitation within the meaning of the Article which corresponds to the present Article 182.
5. In the application of March 30, 1931, the decree-holders merely ask for the reconstruction of the decree. No doubt they stated that they wanted the decree to be re-constructed as they wanted to execute it. In the first place for an application in execution or for a step-in-aid of execution it is not necessary to have the decree or a copy of it filed. Order XXI, rule 11, which lays down certain requirements, does not require the production of either a decree or a copy of it as a preliminary to such an application being filed or entertained. Under Sub-rule (3) the Court may require the applicant to produce a certified copy of the decree, but such a copy is not a necessary annexture to an application for execution. It has been held in Raghunandan Lad v. Badan Singh I.L.R. (1918) All. 209 that an application which is not accompanied by a copy of the decree cannot be said to be an application not in accordance with law within the meaning of Article 182 (5) of Schedule I of the Indian Limitation Act. Then it is nowhere stated in that application that the decree-holders had no copy with them. Further, it does not follow that because the decree-holders applied for a copy of the decree that they would necessarily take proceedings in execution.
6. Mr. Coltman relies on Gulappa v. Erava. I.L.R. (1921) Bom. 269 : 23 Bom. L.R. 1013 In my opinion that case is clearly distinguishable from the present case. There the decree was a mortgage decree made on February 25, 1904, and giving six months' time for payment. Under the old Civil Procedure Code the proper course in the case of a decree under Section 88 of the Transfer of Property Act was to apply for execution and not to apply for a final decree. On June 12, 1907, the decree-holder applied in execution of the decree in which an order for sale of the property was made. But the darkhast was eventually dismissed. On June 13, 1910, another darkhast was presented for the sale of the property, but it was dismissed on the ground that the plaintiff had not applied for a final decree as required by the new Code of Civil Procedure, 1908. The plaintiff accordingly applied on October 7, 1912, for a final decree, but the application was dismissed for non-payment of process fees. A similar application was made on November 7, 1913, but was subsequently withdrawn. Then the final darkhast was filed on September 7, 1915, and it was held that the darkhasts of October 7, 1912, and of November 7, 1913, were steps-in-aid of execution. It is clear on these facts that the application of June 13, 1910, was in time. But assuming that the earlier application of June 12, 1907, was not in time and that the six months' time for payment could not be taken into consideration, in that application no objection was taken by the Court and the order was made in the darkhast that the property should be sold. Then, when the application of June 13, 1910, was made, the order made thereon was that the plaintiff should apply for a final decree. Sir Norman Macleod then stated that the plaintiff was entitled to accept the order of the Court and would be entitled to apply again within three years of the order dismissing the application of June 13, 1910. The plaintiff accordingly applied on October 7, 1912. I should have thought that the application made in 1912 was within time and was clearly a step-in-aid. What is important to note is that the application asked for a final decree, which means that the property should be sold. This clearly would be a step-in-aid even though it may not be held to be an application for execution. This Court seems inclined to hold that an application for an order absolute under the Transfer of Property Act is an application for execution. See Bhagawan v. Ganu. I.L.R. (1899) Bom. 644 : 1 Bom. L.R. 136 Mr. Coltman relies on certain remarks of Sir Norman Macleod at p. 271. They are to the following effect:
The only question which, so far as I can see, now arises is, whether the Darkhasts of October 1912 and November 1913 in which the plaintiff applied for a final decree were steps-in-aid of execution. I fail entirely to see why the Court should not consider that these were steps-in-aid, for the plaintiff was endeavouring to get an order which he had been told to get when the previous Darkhast was dismissed. It is to my mind perfectly clear, and follows from the decision in Desaippa v. Dundappa (1896) I.L.R. 22 Bom. 83 that a Darkhast which is accepted by the Court, although it is out of time, starts a fresh period of limitation.
7. Apart from what I have stated, Sir Norman Macleod put his decision on the ground that the plaintiff was asked to apply for a final decree. He then referred to Desaippa v. Dundappa I.L.R. (1919) Bom. 227 : 22 Bom. L.R. 76 which is clearly based on the applicability of the doctrine of res judicata to execution proceedings, and that is made clear from what Mr. Justice Shah stated at p. 272. The learned Judge observed as follows:
For the purpose of determining that question, it is clear that all the previous applications have to be considered. They were steps-in-aid of execution. The Darkhast of 12th June 1907 was held by the Court then to have been made in time: and after that adjudication it is not open to the Court now to consider the question whether it was in time or not.
8. Upon the whole my conclusion is that the application for re-construction of the decree is not a step-in-aid of execution within Article 182.
9. Finally the decree-holders rely on the application of June 27, 1932. That no doubt is within three years of the application of July 8, 1929, but the latter application was clearly barred by limitation. No notice was given to the defendants, and it is difficult to see how the doctrine of res judicata can apply. On this point it seems to me that the case is governed by the ruling in Bhagwan v. Dhondi. (1896) I.L.R. 22 Bom. 83. If the defendants had appeared on the application of July 1929 and their contention had been overruled and an order made in execution and they had not appealed from it, the position might have been different. That is not the case here. Under the circumstances I must hold that the present application is barred by the law of limitation.
10. The result is unfortunate. But the decree-holders have to thank themselves for their negligence. They went on for more than two years with their application for execution in the Phaltan Court. If only they had applied for simultaneous application in British India, the position would have been different. It is true that owing to the position of the defendants-I am told one of them is a senior pleader at Phaltan, another a District Judge in Kolhapur-the plaintiffs failed in their attempt. On the other hand there are no merits in the defence, and none of the defendants are entitled to any sympathy from the Court.
11. In these circumstances, I think, the proper order to make would be to dismiss the present application, each party bearing his own costs. Surety discharged, the security to be returned.