1. [His Lordship after setting out the facts of the case proceeded as follows:]- The appellant presented the first darkhast within three years of the date of the decree and every subsequent darkhast within three years of the disposal of its predecessor but, the surety or his sons were not parties to any darkhast prior to darkhast No. 647 of 1930 and that darkhast was presented more than three years after the decree of the trial Court. Relying upon the rulings in Narayan v. Timmaya 8 Bom. L.R. 807 and Yusuf Alli v. Papa Miya 25 Bom. L.R. 810 the executing Court held that the earlier darkhast filed against the judgment-debtor alone did not keep the darkhast in time against the surety or his sons and that, therefore, darkhast No. 647 of 1930 was time-barred as against them. All that is laid down in Narayan v. Timmaya, which was followed without any discussion in Yusuf Alli v. Papa Miya, is that a judgment-debtor and his surety are not joint judgment-debtors and therefore a darkhast presented against the former will not avail to save limitation against the latter under expl. I to Article 182 of the first schedule to the Indian Limitation Act. That view is unassailable. But as pointed out in Vyasrao Hanmantrao v. Ramchandra (1944) 47 Bom. L.R. 434 the question whether Clause (5) of that article would not save the bar of limitation was not then considered. After discussing the entire case law on the subject, Mr. Justice Sen observed (p. 439):
It is difficult to see why, because Explanation I deals with cases of more than one decree-holders and judgment-debtors, Article 182, should be deemed to be confined to applications for execution of decrees against judgment-debtors only. That Explanation was apparently necessitated by the realisation where there were more than one decree-holders or judgment-debtors, specially where the decree distinguished portions of the subject-matter as payable or deliverable to or by such parties, doubts might arise in the interpretation of the expression 'application made in accordance with law.' It does not appear that the Legislature in enacting this article had specifically in mind the case of an application for execution against a surety. The first parts of the two paragraphs of Explanation I provide a clarification of or an exception to the general principle of Clause (5), and the second parts of the said paragraphs must be regarded,...as amounting to provisos reaffirming that general principle in cases other than those to which the said exception would apply. We are, therefore, of opinion that the scope of the Explanation cannot be used in determining the scope of Clause (5). That being so,...we, do not consider ourselves bound by Narayan v. Timmaya because that case was decided on a line of reasoning which has been accepted in the present appeal and because the argument that though Explanation I does not apply Clause (5) does was not advanced or considered in that case.
In the same case Mr. Justice Rajadhyaksha observed (p. 441):
If...our view is correct, viz. that Article 182(5) is general in its application, and that 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 would save limitation also against others affected by the decree, then the whole of paragraph 2 of Explanation I would operate as an explanation or as a clarification of that clause.
2. We respectfully agree with this view, and it may now be taken as settled that a decree obtained against a judgment-debtor and sought to be executed against him alone can subsequently be executed against his surety also even though more than three years have elapsed since the passing of the decree, provided the decree is kept in time by steps-in-aid of execution either against the judgment-debtor, or the surety. Hence darkhast No. 647 of 1930 must be held to be in time as the previous darkhasts against the judgment-debtor were in time, though his surety or his sons were not parties to them.
3. Moreover, the decree under execution having been modified by the High Court on January 5, 1032, the decree of the trial Court became merged in the High Court decree and it was the latter alone which could thereafter be executed. But relying upon Harilal v. Mulchand (1929) 32 Bom. L.R. 300 the executing Court held that a fresh darkhast had to be presented after the decision of the High Court, seeking execution of the decree of the High Court, and that as such fresh darkhast was given only in 1939, nearly seven years after the date of the decree, it was time-barred. But when darkhast No. 647 of 1930 was pending, the appellant, as soon as the High Court gave its decision, made an application to the executing Court to amend the darkhast application so as to make it an application in execution of the decree of the High Court. He also asked that the amount claimed should be amended by including the interest awarded by the High Court. That application was granted and the darkhast was proceeded with. That darkhast passed through several stages and was treated as a darkhast for execution of the decree of the appellate Court. No objection was taken to the amendment and the darkhast was dismissed in 1936. In these circumstances the amended darkhast should be treated as a fresh darkhast for the execution of the appellate decree, and the next darkhast being presented within three years after the disposal of darkhast No. 647 of 1980, it was in time and it saves the present darkhast from the bar of limitation. We, therefore, hold that this darkhast is in time.
4. It is next urged on behalf of the appellant that the executing Court has not taken the accounts correctly. The trial Court had passed the decree in 1930 awarding only the principal amount of Rs. 5,500 with costs, and before that decree was amended by the High Court, several payments had been made by the judgment-debtor and the executing Court thought that those amounts should be appropriated towards the principal amount which had been awarded by the decree of the trial Court and interest should be calculated only on the balance that remained. There was no express appropriation of the amounts paid. The amounts were recovered in execution of the decree and the amounts were deemed to have been paid towards the satisfaction of the decree. That decree has been substituted by the decree of the appellate Court and those amounts should be treated as paid towards the satisfaction of the decree of the appellate Court. Hence the account of the balance still due should be taken afresh in the light of the decree of the appellate Court.
5. Finally, it is urged on behalf of the respondents that their father has left no moveable property. The executing Court upheld this contention and observed that the surety having died 18 years ago, his sons were not in possession of the property mentioned in the list of moveables of the deceased furnished by the appellant. It is true that no evidence had been adduced at this stage to prove that the moveables mentioned in the list belonged to the deceased surety. When the appellant points out the moveables for being attached, it is open to the respondents to resist the attachment on the ground that they are their own property and not of their deceased father. If the appellant succeeds in proving that they belonged to the deceased, they will be liable to attachment. If no such moveables be found to be available, then none can be attached in execution of the decree. .But the darkhast cannot be dismissed as being time-barred.
6. We, therefore, allow the appeal, set aside the order of the lower Court and remand the darkhast to be proceeded with in accordance with law in the light of this judgment. The respondents shall pay the costs of the appellant in this Court. Costs in the lower Court will be costs in the cause. The record should be sent down to the lower Court as early as possible.