John Beaumont, Kt., C.J.
1. This is a second appeal from a decision of the District Judge of East Khandesh, raising a point of limitation. Unfortunately the respondents have not appeared, and therefore I have not had the advantage of any argument in support of the judgment of the learned District Judge which confirmed that of the learned trial Judge.
2. But the point is a very short one and depends entirely on the construction of the fifth paragraph of Article 182 of the Indian Limitation Act. The facts which give rise to the difficulty are these-
3. In 1927 a mortgage decree was made for payment of a sum of money by four equal annual instalments. The first instalment was to be paid in December, 1927, and the other instalments in December, 1928, 1929 and 1930. In July, 1929, a darkhast was issued to recover the two instalments then due, and that darkhast was disposed of on April 20, 1932. The present darkhast was issued on June 5, 1935, but it was not disputed that by reason of the vacation of the Court that darkhast has to be treated as within three years from the date of the dismissal of the previous darkhast. Both the lower Courts held that the present darkhast being within three years from the dismissal of the previous darkhast, the first two instalments to which that first darkhast related were saved from limitation, but as the first darkhast did not relate to the two later instalments, which were not due at the time of its issue, there was no step-in-aid of execution in respect of the last two instalments which were therefore time-barred.
4. It is, on the face of it, a rather singular result to arrive at, that the? two earlier instalments are not time-barred, whilst the two later instalments are. Both the lower Courts regarded the decision of this Court in Sitabai v. Keshavrao I.L.R. (1921) 46 Bom. 719 : 24 Bom. L.R. 284 as governing the present case. But, in my opinion, that decision does not determine the question which arises here. In that case there was a decree for payment by instalments, and in 1918, there was a darkhast to recover the instalments due in 1911, 1912 and 1913, which were recovered, and in 1919 a darkhast to recover the instalments due in 1914 and 1915 was filed, and it was held that the earlier darkhast was a step-in-aid of execution which kept the decree alive in respect of the instalments of 1914 and 1915, which were not covered by the earlier darkhast. The appellant contends that the decision is in his favour, and not against; him, as the lower Courts suppose. But the distinction between that case and the present is that at the time of the earlier darkhast, which was relied on as a step-in-aid of execution, the later instalments were due although they were not sought to be recovered by that darkhast, and at the conclusion of his judgment the learned Chief Justice said (p. 722) :-.but we see no reason why a Darkhast, which asks for the assistance of the Court for the recovery of one of several instalments due at the date of the Darkhast, should not be considered as a step-in-aid so as to start a new period of limitation with regard to all the instalments then due.
5. No doubt the decision is limited to the facts of that case in which all the instalments were due at the date of the earlier darkhast, and it does not cover a case, like the present, where the later instalments were not due. It may be contended that a darkhast cannot be regarded as a step in execution of a part of the decree which is not executable at its date, but one has to look to the actual language of Article 182. That article provides that for the execution of a decree time is to be three years from the alternative dates which are set out in the seven paragraphs in column 3. For a second application, like the one in the present case, there is no doubt that it is the fifth paragraph which applies, and that paragraph amounts to this that where there is 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, then time runs from the date of the final order passed on that application. At the date of the decision in Sitabai v. Keshavrao time ran from the date of the application, and not of the final order, but that, I think, does not alter the nature of the problem to be determined. The point to notice is that if there is an application to take some step-in-aid in execution of the decree, then time runs from the final order made on that application. It seems to me, on the language of the article, that if there is an application for execution of so much of the decree as is executable, that is a step-in-aid of execution of the decree and prevents time running in respect of the whole decree.
6. Mr. Chitale has also referred to the case of Latafat Ali Khan v. Kalyan Mal All. 342, which, I think, to some extent assists him. In that case moneys were payable under a decree by instalments, and in 1925 there was a payment into Court in respect of the instalment due in that year, and that money was taken out of Court in 1928. It was held that taking the money out of Court in respect of the 1925 instalment was a step-in-aid of execution of the decree and kept the decree alive in respect of the 1926 and 192? instalments. No doubt those instalments were due at the date of the step-in-aid of execution, but that step had nothing to do with the execution of the decree in respect of those two instalments. In my opinion both the lower Courts have misunderstood the effect of Sitabai v. Keshavrao, and the appeal must be allowed with costs throughout and the darkhast must continue.