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Muhammad Suleman Khan Vs. Muhammad Yar Khan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1895)ILR17All39
AppellantMuhammad Suleman Khan
RespondentMuhammad Yar Khan and ors.
Excerpt:
execution of decree - decree as originally framed incapable of execution--amendment of decree--limitation--act no. xv of 1877 (indian limitation act), schedule ii, articles 178, 179. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under..........decree, but it applies where there has been an appeal from that decree, and it applies also to a case in which there has been a review of judgment after decree. there is no provision in article 179 to meet a case in which at the date of the decree, the decree through the fault of a court or the fault of an office in drawing it up or passing it, is incapable of execution. it appears to us that under these circumstances we must apply article 178, and we apply it because this court had decided that the decree of 1882 was absolutely incapable of execution. under article 178 the respondents' application now under consideration is within time, for it was made, although on the last day of limitation, within three years from the time when the right to apply to execute the decree accrued on.....
Judgment:

John Edge, Kt., C.J. and Banerji, J.

1. This is a somewhat peculiar case. The respondents in this appeal from an order on an application in the execution of a decree obtained in the Civil Court on the 24th of December 1878, a decree, which was affirmed in this Court in 1882, in a suit for possession of property. In 1883, on an application to execute that decree, possession was delivered to these respondents. In 1884 this Court held, on appeal from the order putting the respondents in possession, that the decree as it stood was incapable of execution. The decree in question was the decree in appeal of this Court. In 1884 an application was presented to this Court, for the amendment of the decree by bringing it into accordance with the judgment. That application was refused in 1884. In 1885 these respondents applied to the Court below to amend the decree. On that application an order to amend was made by the lower Court in 1885, but that order was set aside on appeal to this Court in 1889 on the ground that the decree in question being a decree by this Court, this Court was the only Court which could amend it. Thereupon, on the 5th of March 1889, these respondents applied to have the judgment of this Court, refusing the application to amend which was made in 1884, reviewed, and prayed that the decree might be amended. On the 6th of May 1890 the decree was amended on that application and brought into accordance with the judgment. On the 6th of May 1893, the application to execute the decree out of which this appeal has arisen was filed. The Subordinate Judge made an order for the execution of the decree.

2. It has been contended here, on behalf of the appellant, the judgment-debtor, that Article 179 of Schedule II of the Indian Limitation Act, 1877, applies, and that even if the proceedings taken by these respondents on and prior to the 5th of March 1889 might be regarded as applications to take steps in aid of the execution of the decree, yet that this application is time-barred as not having been made within three years of the 5th of March 1889. It was also contended on behalf of the appellant that an application to amend a decree is not an application to take a step in aid of the execution of the decree, and that, although the decree was amended as late as the 6th of May 1890, the 'date of the decree' mentioned in Article 179 is the date which the Code of Civil Procedure enacts shall be the date of the decree, namely, the date of the judgment, which is that of the original judgment where there has been no review of judgment.

_______________________________________________________________________________________

Article 178.

_______________________________________________________________________________________

Period of Time from which period begins

Description of Application. limitation. to run.

________________________________________________________________________________________

Applications for which no period Three years. When the right to apply acorues.

of limitation is provided elsewhere

in this schedule, or by the Code of

Civil Procedure, Section 230.

_________________________________________________________________________________________

3. The following cases have been cited to us: Kallu Rai v. Fahiman I.L.R. 13 All. 124; Tarsi Ram v. Man Singh I.L.R. 8 All. 492; Darbo v. Kesho Rai I.L.R. 9 All. 364, and Thakar Das v. Shadi Lal I.L.R. 8 All. 56.

4. The question is not devoid of difficulty. On the one hand we have Article 179, which is the only article which apparently expressly relates to the period of limitation for applications for execution of decrees. On the other hand there are undoubtedly cases of applications to execute decrees to which Article 179 could not possibly apply. One such case was that of Muhammad Islam v. Muhammad Ahsan Weekly Notes 1894, p. 61. It appears to us that the first paragraph of the third column of Article 179 must necessarily apply only where there is a decree or order which can at its date be executed. It appears to us that that paragraph necessarily contemplates the existence of a decree capable of being executed at the date of the decree. In our opinion it would apply to a decree capable of being executed at its date, even though such decree might not be in accordance with the judgment, and although subsequently it might be necessary to make an application to bring the decree into accordance with the judgment. In our opinion, so long as there was, at the date of the decree, a decree capable of execution, the first paragraph of the third column of Article 179 would apply. This Court in 1883 rightly or wrongly held that the decree of this Court of 1882 on appeal was, by reason of a defect in it, incapable of execution. That decision is binding on us, and for present purposes we must assume that the decree passed in appeal in 1882 affirming the decree of the lower Court of 1878 was, by reason of an infirmity in drawing it up, incapable of execution. Consequently it appears to us that until the 6th of May 1890, there was no decree in the suit between these parties which was capable of being executed. If Article 179 were to apply to such a case as this, the decree-holder's power to obtain the fruits of a judgment in his favor might be defeated through no fault of his own by a Court delaying for more than three years from the date of its decree to bring the decree into accordance with its judgment and give the decree-holder a decree which he could execute. Article 179 applies not only to an application to execute an original decree, but it applies where there has been an appeal from that decree, and it applies also to a case in which there has been a review of judgment after decree. There is no provision in Article 179 to meet a case in which at the date of the decree, the decree through the fault of a Court or the fault of an office in drawing it up or passing it, is incapable of execution. It appears to us that under these circumstances we must apply Article 178, and we apply it because this Court had decided that the decree of 1882 was absolutely incapable of execution. Under Article 178 the respondents' application now under consideration is within time, for it was made, although on the last day of limitation, within three years from the time when the right to apply to execute the decree accrued on the amendment of the decree. No doubt with regard to any future application paragraph 4 of the third column of Article 179 contains the limitation which will be applicable. We dismiss this appeal with costs.


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