1. This appeal arises in execution proceedings of a decree obtained by the present respondent against the appellants, who are the judgment-debtors. The decree was passed on November 24, 1923, for Rs. 5,550 in Suit No. 973 of 1921. Two years later, another suit was filed by the present appellants against the respondent. That was Suit No. 1169 of 1923 in which the appellants ultimately got a decree in their favour against the respondent on February 20, 1925. An appeal was filed against this latter decree by the present respondent on June 15, 1925, and that appeal was decided finally on January 27, 1930, by the Appellate Court, which confirmed the trial Court's decree. Now, the events that led to this appeal arose in this way: The present respondent filed his Darkhast No. 70 of 1924 against the appellants on January 16, 1924, and therein he applied for the execution of the whole of the decree obtained by him, i.e., to recover Ks. 5,550 with interest and costs. After this darkhast was filed, the cross-Suit against the present respondent was disposed of, as I have stated, on February 20, 1925, and it appears from an order passed by the executing Court on March 9, 1925, that there was an agreement between the parties to the following effect, when both the suits were going on. The agreement was that after the two decree's were passed, the party who was entitled to the larger amount should pursue execution of the decree in his favour to the extent of the excess. In virtue of that agreement the executing Court seems to have disposed of the darkhast on March 9, 1925, stating that execution can only lie for the excess amount and not for the amount decreed in the respondent's favour. Then, on February 20, 1928, the respondent filed a second Darktiast No. 374 of 1928 for execution of the whole of the decree obtained by him against the appellants. It appears that in that darkhast the present appellants had objected that that darkhast was time-barred, that the execution could lie only for the excess and not for the whole amount, but that darkhast was dismissed, without going into these contentions, on June 20, 1928. A third Darkhast No. 2062 of 1929 was filed by the respondent against the appellants on November 18, 1929, to recover the excess, that is, the balance; remaining in his favour after deducting the amount of Rs. 4,068 decreed against him. In that darkhast it was held by the Court on September 8, 1930, that the darkhast was in time, but that it was premature, because the appeal which was filed by the present respondent in the decree passed against him in favour of the appellants was not decided at the time of the application, and it appeals that that order was made on account of the written statement filed by the present appellants in that darkhast on January 20, 1930, in which they stated that the darkhast should be suspended as the respondent had filed an appeal against the decree obtained against him by the appellants, It appears that the respondent acquiesced in that contention and that darkhast was disposed of by the Court, even though it appears that before the date of the disposal of this darkhast, the appeal was decided on January 27, 1930, and the ground of appeal seems to be that as an appeal was pending at the time when these execution proceedings were going on and as the execution proceedings were filed only for the balance, the application itself could not lie. Then the respondent filed the present darkhast, from which this appeal has been preferred, on October 30,1930, in which he asks for the excess amount only as against the appellants.
2. The appellants' answer to this darkhast is that this darkhast is time-barred, because the second darkhast filed by the respondent was itself time-barred, and secondly that it was not in accordance with law, and therefore it did not save limitation, and the argument is that under the agreement between the parties, which is embodied in the order passed by the executing Court on the first darkhast, execution has to be taken out after the decree of the trial Court was passed, and the second darkhast which was taken out was not in accordance with law, because it did not comply with the provisions of Order XXI, Rule 11(g), Civil Procedure Code, which lays down that, the cross-decree passed before or after the date of the decree-sought to be executed. should be stated in the application for execution. Admittedly, the respondent, when he filed the second darkhast in February 1928, did not mention the fact of the passing of the cross-decree which was passed in February 1925, and on this ground it was urged that the second darkhast was not in accordance with law and therefore it could not be regarded as a step-in-aid of the execution of the decree, with the result that the fourth darkhast would be barred by time as the intermediate darkhast itself was time-barred.
3. The learned Judge has accepted the appellants' contention with regard to the second darkhast, viz., that it was not in accordance with law inasmuch as the respondent did not comply with the provisions of Order XXI, Rule 11, which are peremptory. But in his view, even though the second darkhast has not been in accordance with law, and cannot therefore be regarded as a step-in-aid of execution, the fourth darkhast could not, be time-barred, because it is the date of the decree of the Appellate Court which is the starting point of limitation for the purpose of this darkhast, and according to the learned Judge, the agreement between the parties, really speaking, was that the party in whose favour the excess was decreed was entitled to execute his decree after the decrees were passed, and tile decree to be executed was not simply the decree in the suit, but any final decree that would be passed in those proceedings, which would include a decree in appeal when an appeal has been preferred against that decree, because it is the Appellate Court's decree in which the original Court's decree would be merged, and he therefore held that the effectual decree for the purpose of set-off would be only the final decree in the suit, i.e., the decree in appeal, and that decree being on January 20,1930, and the present darkhast being filed on October 30, 1930, it was not time-barred at all,, and he has therefore directed that: execution should proceed in this darkhast and attachment should issue against defendant No. 1's movable property, and warrants of arrest against defendants Nos. 2 to 4.
4. Against this order the appellants have filed the present appeal, and Mr. Desai, their learned Advocate, has urged two. points, viz, that the present darkhast is time-barred, because the second darkhast itself was time-barred, and therefore was not a step-in-aid of execution, and, secondly, that the agreement between the parties was that it is the decrees in the suits that are to be, set-off against each other, and not the decree in appeal, and therefore the present respondent ought to have filed a darkhast within time from the date of the decree in the suit, and not from the date of the decree in appeal. Now in order to appreciate these points, which, really speaking, are based upon one point, viz., as to what was the exact agreement between the parties which was embodied in the order of the Court in the first darkhast, we have to see as to the nature of the agreement between the parties. The agreement between the parties clearly shows that it was to make a set-off as between these two cross-decrees but it is important to note that this set off was not a set-off which was contemplated by Order XXI, Rule 18, which states that such set-off between the cross-decrees is to be ordered by the executing Court where applications were made to the Court for the execution of cross-decrees in separate suits for the payment of two sums of money passed between the same parties. Admittedly here the only application made was the application in the first decree, and no application has been made with regard to the execution of the second decree at all. Therefore, Order XXI, Rule 18, would not apply and the set-off therefore would not be a set-off as contemplated by the provisions of the Civil Procedure Code, or as ordered by the Court, but only as agreed to by the parties to these proceedings when the two suits were proceeding.
5. We are not, therefore, concerned as to what would be the effect of the set-off when no execution application is made within three years of the suit, We have to be guided here with what was agreed upon by the parties at the time I have quoted above the agreement between the parties which is embodied in the order of the executing Court in the first darkhast, and in our opinion that agreement really amounted to this, that any party in whose favour the excess was decreed had ultimately to take out execution, and the excess can only be ascertained after the final decree is passed, and the final decree therefore would be the decree passed in the appeal, if any, preferred by any of the parties.
6. It is true that the only appeal that was filed was by the respondent against the appellants, and no appeal was filed by the appellants. But the appeal that has been filed by the respondent, no doubt, was not filed till June, 1925, that is, nearly three months after the order of the Court incorporating the agreement between the parties. Mr. Desai has argued that at that time, i.e., on March 9, 1925, it could not have been the intention of the parties that it was the decree of the Appellate Court that was to be taken as the starting point of limitation, because, no appeal had been filed by that time at all. But what is to be looked to is the agreement between the parties, and not the events that have happened, and what could have been contemplated between the parties, and we think that if the parties contemplated that it was only the excess amount that had to be recovered from one party by the other, it is only the excess amount as finally decided by the Court as due to the party that is the determining amount for the purpose of execution, and the determining date for that purpose would therefore be the date of the Appellate Court's decree, viz., the decree in appeal. We therefore think that the lower Court, was right in holding that it is the decree of the Appellate Court that is the starting point for limitation.
7. But, apart from that, we think that even; according to the general provisions of the law the decree would mean the final decree in the proceedings between the parties, and it has been recently held by our Court in Pandharinath v. Thakoredas 122 Ind. Cas. 78 : A.I.R. 1929 Bom. 262 : 53 B. 453 : 31 Bom. L.R. 484 : (1930) Bom. 108 that a suit and all appeals made therein are to be regarded as one legal proceeding, and that in the legal pursuit of a, remedy, suit, appeal and second appeal, are really but steps in a series of proceedings connected by an intrinsic unity. That being so, even according to the general provisions of the law, the execution of the decree would mean the extortion of the final decree in the proceedings between the parties, and from that standpoint also, it is the appellate decree that has to be executed. In this view of the facts and the law, the decision of the lower Court would be correct, even apart from the fact as to whether the second darkhast presented by the present respondent was in accordance with law or not. It is no doubt true that in that darkhast the present respondent did hot comply with the provision of Order XXI, Rule 11, inasmuch as the information that has to be given in column (g) as to the amount with interest due upon the decree or other relief granted thereby, together with particulars of any cross-decree, whether passed before or after the date of the decree sought to be executed, was not supplied, and the question therefore would be whether the omission to mention the particulars of the cross-decree would so invalidate this darkhast as to make it not in accordance with law, with: the result that it would not be a step-in-aid of execution of the decree.
8. On that point there seems to be some difference of opinion between the Calcutta. High Court and the Madras High Court. The Calcutta High Court has held in Gopal Sah v. Janki Koer 23 C. 217 that such a delect in the application would mate the application not in accordance with law and, therefore, it could not be a step-in-aid of execution, although, no doubt, some of the observations made in chit case have been shaken by a subsequent decision of the same High Court in Pitambar Jana v. Damodar Guchait 98 Ind. Cas. 166 : A.I.R. 192 : Cal. 1077 : 53 C. 664 : 30 C.W.N. 98 : 45 C.L.J. 86 On the other hand, the Madras High Court has taken a very liberal view of the provisions, and seems to be of the opinion that the mere omission from the execution petition of the particular is required under Order XXI, Rule 11 is not sufficient to make it otherwise than in accordance with law, and reference may be made in this respect to the cases of Seshayya v. Venkatasubbaiah 29 Ind. Cas. 16 : A.I.R. 915 Mad. 1204 : 28 M.L.J. 494 : 2 L.W. 540 and Vittala v. Sheenappa Shetty 147 Ind. Cas. 386 : A.I.R. 1983 Mad. 872 : 38 L.W. 877 : 6 R.M. 338 : (1933) M.W.N. 920 We think that although it is not necessary for the purpose of this decision to pronounce any opinion on this point, in order to see whether a particular application for execution is or is not in accordance with law, what has to be looked to in each particular case is whether the executing Court would or would not issue execution on the application for execution as preferred to it, and we think that the test is correctly laid down by the Calcutta High Court in Pitambar Jana v. Damodar Guchait 98 Ind. Cas. 166 : A.I.R. 192 : Cal. 1077 : 53 C. 664 : 30 C.W.N. 98 : 45 C.L.J. 86 and that test is (p. 665 Page of 53 C.-[Ed.]:
The expression is accordance with law' in Article 182 (5) should be taken to mean that the application though defective in some particulars was one upon which execution could lawfully be ordered. If the omissions were such as to make it impossible for the Court to issue execution upon, it, it should be held that such an application was not in accordance with law.
Where on application for execution in substantial compliance with the law is preferred to the Court, such an application will be effectual to stay the progress of limitation whether the Court admits, or rejects, or returns the application or allows such application to be amended.
so that, according to this test each case would depend on its own facts as to whether the application for execution was or was not in accord nice with law. Mr. Desai has contended that Order XXI, Rule 17 provides that if the provisions of Rule 11 are not fulfilled, then the application has to be returned to the party, arid it is only after the application is amended that it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented. It is no doubt true that according to this rule, when the application is returnee for amendment, it is only after the amendment that it becomes in accordance with the provisions of the law. But before the Court returns the application for amendment, it is the Court that has to satisfy itself as to whether the application is or is not in substantial compliance with the law, and therefore the point still remains as to whether the application is materially defective in that respect, or whether the defect is only technical.
9. Mr. Desai has also urged another point with regard to the second darkhast, viz., that even apart from the first contention the second darkhast would be time-barred, because it was presented on February 20, 19'8, and it is presented more than three years after the date of the first darkhast, viz., January 16,1924, and therefore from that standpoint the second darkhast must be time-barred and the respondent could not get the benefit of the Amending Act of 1929, because that Act came into force on January 1, 1929, i.e., after the respondent had lost his right under the former Act, and that therefore the second darkhast could not be regarded as within time at all. This point does not seem to have been taken in any of the Courts below either in the second, or the third or even in the present darkhast, and if this appeal is not disposed of upon the first point that I have mentioned, viz., that the starting point of limitation dates from the date of the decree of the Appellate Court and not from the date of the decree of the trial Court, it might have been necessary to go into that question. But, in the view that we have taken of this matter, it is not necessary to go into that question, and we therefore think that the decision of the lower Court on the ground on which it has made it being correct, this appeal will be dismissed with costs.