1. This appeal has been referred by a learned Judge of this Court to a Bench for decision on account of certain conflicting decisions of different High Courts on the question as the what is and what is not 'step in aid of execution of a decree' within the meaning of Article 182 (5) of the Limitation Act under given circumstances.
2. The facts are these. In a suit for partition of joint family properties a compromise decree was passed on the 5th of December, 1935, which was partly preliminary and partly final. It was preliminary in respect of certain immovable properties in which shares were defined and they were to be divided by metes and bounds later on. It was final with respect to two sums of money, namely, (1) Rs. 90 which was payable immediately, and (2) Rs. 600/- which was payable by the end of Baisakh 1343 Fasli, equivalent to May 1936.
There were some objections regarding the decree and the matter went up in appeal. After the decision of the appeal a preliminary decree was drawn up on the 10th of September, 1943, on the basis of the appellate court's decision and in that decree the liability for the payment of the two sums on dates aforesaid had been upheld. On the 1st of November, 1945, the decree-holder applied for the preparation of a final decree to which objection was taken by the judgment-debtor on the 30th of March, 1946.
The objection was disposed of by the Court on the 11th of February, 1947, and it was held that the decree of the 10th of September, 1943, was executable in respect of the two sums of Rs. 90/- and Rs. 600/- stated above for which no final decree was necessary and that a final decree could be passed in regard to certain other property. On the 12th of February, 1947, that is on the day following the date of the order for the preparation of the final decree, an application was made in the Execution Department for the recovery of this sum of Rs. 690/-.
The judgment-debtor raised objection to the effect that execution was time barred. The decree-holder, on the other hand, contended that since the preliminary decree passed by the appellate court was dated the 10th of September,1943, and since the application for a final decree was made on the 1st of November 1945, that application was a 'step in aid of execution' within the meaning of Article 182 (5) of the Limitation Act and consequently the execution petition that was made on the 12th of February, 1947, was within time.
The executing court repelled the contention of the decree-holder and held that execution in regard to Rs. 690/- was time barred. Aggrieved with that decision the plaintiff decree-holder preferred the present appeal.
3. In support of his contention that the application for final decree was a 'step in aid of execution' learned counsel for the decree-holder has relied upon Raghunath Singh v. Subedar Singh. ILR 14 Luck 453: (AIR 1939 Oudh 155) (A), Gulappa v. Erava, AIR 1922 Bom 118 (B), Kunhammad Hajee v. Kozhunammal, AIR 1923 Mad 38 (C) and Ram Narain v. Maharaj Singh. AIR 1940 Lah 337 (D). On the other hand, learned counsel for the respondent has relied upon a number of other decisions which we shall presently notice.
4. In ILR 14 Luck 453: (AIR 1939 Oudh155) (A), a suit for partition of joint family property was brought into court in February, 1930.On the 25th Of July, 1930, the parties to the suitentered into a compromise by which it wss provided that a decree would be passed in favour ofthe plaintiff for partition of landed property andsome houses and for mesne profits the amount ofwhich would be determined through a commissioner at the time of the passing of the finaldecree.
The whole of the decree was therefore preliminary and no part of the decree was executable on the date of that decree. On the 25th of October. 1930, the plaintiff put in an application for the passing of the final decree but this application was dismissed for default on the 24th of January, 1931. On the 27th of July, 1932, he again put in an application for getting the decree made absolute. To this application the judgment-debtors objected and the Court on the 24th of November. 1932, passed the following order :
'The application for final decree is dismissed as the decree having been passed under Order XXIII, Rule 3, C. P. C. is itself final. It can now be executed in execution department. The applicant to bear his costs.'
5. Thereafter an application for execution of the decree was made on the 20th of November, 1935. The judgment-debtors objected on the ground that it was barred by time. The executing court held that limitation had been saved by the previous applications made by the decree-holders. The question arose as to whether or not the applications of the 25th of October, 1930, and the 27th of July, 1932, could be said to have been 'steps in aid of execution of the decree.''
A Bench of the Chief Court of Oudh at Lucknow held that the previous applications were 'steps in aid of execution' for the decree-holder was asking the court to take an order which was thought necessary before taking out actual execution and as the ultimate object of those petitions was to hasten the actual realisation of the decree amount.
6. In AIR 1922 Bom 118 (B), the plaintiff applied for the execution of his decree which was passed on the 25th of February, 1904 in a mortgage suit giving the usual six months' timefor payment under Section 88 of the Transfer of Property Act. The execution petition was made on the 12th of June, 1907. Notice was issued to the defendants. On their failure to appear, an order absolute was made on the 2nd of October, 1907, but as the plaintiff took no further steps in paying the necessary fees, the application was eventually dismissed.
Before the present Civil Procedure Code came into force, the proper procedure 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. But if time was to be taken to rim against the decree-holder from the date of the decree and not from the end of six months, the period allowed for payment, then that application was presented more than three years after the decree,
No objection was taken before the court and the order was made that the property should be sold. On the 13th of June, 1920, the plaintiff filed an application praying for the sale of the property but that application was dismissed on the ground that the Code of Civil Procedure of 1908 required that the preliminary decree in a mortgage suit should be made final and the plaintiff had not applied for a final decree.
It was observed at pase 119 of the report in AIR 1922 Bom 118 (B), that that clearly was a wrong decision; but the plaintiff was entitled to accept the order of the court ana accordingly on the 7th of October, 1912, he applied for a final decree which was dismissed for non-payment of process fee and he macis a similar application on the 7th of November, 1913, and two other successive applications on the 26th of February 1915, and the 7th of September, 1915.
It was held by the Bombay High Court that the applications of October 1912 and November 1913 in which the plaintiff applied for a final decree were 'steps in aid of execution'' for the plaintiff was endeavouring to get an order whicn he had been told to get when the previous application was dismissed.
7. In : AIR1928Mad38 , a Bench of the Madras High Court held that where the decree-holder by applying for a final decree was endeavouring to get an order which he thought at the time was necessary before executing his decree, but afterwards duo to better advice he gave up that attempt and applied for the execution of the decree without getting a final decree as that was unnecessary, such applications were 'steps in aid of execution' for which he was asking the court to make an order which was thought unnecessary.
8. In AIR 1940 Lah 337 (D), a preliminary decree for possession of certain property by partition was passed on the 24th of December, 1925. An appeal from that preliminary decree was decided on the 13th of March, 1933, and thereafter an order for drawing up the final decree on payment of proper stamp duty was passed on the 28th of June, 1935. The decree-holders did not, however, pay the stamp duty till the 22nd of May, 1937.
When notice was issued to the judgment debtors, they objected that the stamp duty paid was insufficient. The court upheld the. objection and asked the decree-holders to pay up the additional stamo duty. A petition for revision of that order was filed in the High Court and eventually it was decided on the 16th of November, 1937 that the stamp duty originally paid by the decree-holders was sufficient.
A final decree was then drawn up on the stamp paper on the 6th of January, 1938. On the 30th of November, 1938, the decree-holders applied for execution of the flnal decree, but anobjection was raised that the application was barred by time. The contention of the judgment-debtors was that time began to run from the date on which the order for drawing up the final decree was passed, namely, the 28th of June, 1935. and as the application for execution was made more than three years after that date, the application was time-barred.
That objection was upheld and the application for execution was dismissed by the executing court. An appeal was taken to the Lahore High Court and it was held that for the purposes of limitation under Article 182 the date of the decree in a partition suit must be taken to be the date on which the order for drawing up the final decree was passed and not the date for which the necessary stamp paper for drawing up the decree was supplied by the decree-holder.
It was further held that the test for deciding whether a certain application is a 'step in aid' is whether the granting of an application would aid execution and hence the application in a partition suit for preparation of a formal decree-sheet on stamped paper supplied by the decree-holder should be treated as a 'Step in aid of execution' for the purpose or Article 182.
9. These decisions are distinguishable on facts from the facts of the present case. In the present case the decree was partly preliminary and partly final. Where in a preliminary decree in a partition suit certain reliefs are granted which are executable immediately or on a certain specified date, time will begin to run for the purposes of execution from the date of that decree or from the date when default is made.
In more or less analogous circumstances it was held in Lakshminarasinga Rao v. Balasubrah-manyam, AIR 1949 Mad 251 (E), that where a preliminary decree in a partition suit grants some reliefs which are executable, the twelve years under Section 48 of the Code of Civil Procedure began from the date of the preliminary decree for the purpose of execution of those reliefs and that the date of the decree for the purpose of applying Section 48 is the date on which the decree becomes operative, namely, that on which the plaintiff is at) liberty to file an execution petition to enforce a relief which the Court has granted him.
10. in Mohammad Sadique Mian v. Mahabir Sao, AIR 1942 Pat 410 (P) after a preliminary decree had been passed a commissioner was appointed by the Court to ascertain the mesne profits. The commissioner submitted his report which was accepted by the Court on the 6th of January, 1936, and the Court passed the following order on that date:
'The commissioner's report is put up. Let final decree be prepared in terms of the Commissioner's report. The plaintiff shall get costs on ex parte scale and pleader's fee Rs. 2 1/2 per cent. No decree shall be prepared unless deficit court-fees are filed.'
The plaintiff remained idle for a long time and on the 10th September, 1938, he filed a petition praying for assessment of deficit court-fee and for preparation of the final decree. On that application the Court passed an order on the 26th of October, 1938, directing the plaintiff to pay deficit court-fee of Rs. 127/8/- by the 19th of November, 1938. The plaintiff, however, did notdeposit the deficit court-fee until the 1st of December 1938.
On the 3rd of December, 1938, an order for the drawing up of the final decree was passed and the decree was eventually drawn up on the 30th of January, 1938, which, was signed on the 8th of February, 1939. Thereafter the application for execution was filed on the 17th of January, 1940. The judgment-debtor took the objection that the execution was barred by limitation as it was filed more than three years after the date of the decree.
That objection found favour with the learned Subordinate Judge, but on appeal the learned District Judge overruled it and allowed the execution to proceed. The judgment-debtor preferred a second appeal in the High Court. It was held that execution was time-barred. It was further held that a 'step-in-aid of execution'' implies that there is already a decree which can be executed and in furtherance of which the step is taken and that the application for preparation of the final decree could not be said to be a 'step-in-aid of execution.'
11. In Bajya Hari v. Tarachand, AIR 1943 Nag 308 (G) a suit was brought on a mortgage and the matter was referred to an arbitrator. On his award a compromise decree was passed on the 10th of November, 1937. By that decree the judgment-debtors were allowed to pay by annual Instalments commencing from the 1st of June, 1938. The agreement was that on default of three instalments, the whole amount would become due. Three instalments were defaulted and thereafter the decree-holder applied to the Court for a final decree on the 7th of September, 1942.
That application was rejected on the 31st of August, 1943, because the compromise decree in effect operated, as a final decree between the parties. After the rejection of that application a second application for execution was filed on the 19th of October, 1943. That application was patently beyond the period of limitation unless the application dated the 7th of November, 1942, could be regarded as a 'step-in-aid of the execution of the decree.' The executing Court and the Court of first appeal held that the application for making the final decree was a 'step-in-aid of execution'' and they relied upon ATR 1923 Mad 38 (C) and ILB 14 Luck 453; (AIR 1939 Oudh 155) (A).
An appeal was taken to ths High Court and reliance was plared on Maruti v. Nanjappa Chetty. ILR (1942) Nag 539: (AIR 1042 Nag 63) (H); Jodly Singh v. Bhagwan Das Nanak Chand, ILR (1937) Lah 671: (AIR 1938 Lah 117) (1) and Corporation of Calcutta, v. Monjoor Ahmad. : AIR1939Cal488 and Gulabsingh v. Nathu ILR (1944) Nag 419: (AIR 1944 Nag 145) (K), in support of the contention that the application for a final decree was a totally infructuous proceedings and therefore it did not serve to save limitation. It was held that infructuous applications made in the suit are not 'steps-in-aid of execution' and the application that was made, whether bona fide or not must be regarded as a proceeding in the suit itself, though entirely superfluous because the relief claimed had already been got.
It was further held that the question of bona fides was irrelevant and the matter has to be judged objectively as to whether the application in question was or was not a 'step-in-aid of execution'. It was observed that either there is an executable decree or there is not one; that if there is an executable decree that decree has tobe executed by a proper application and the application must be in aid of that execution; and if there is no decree in execution, then the application is not one for execution of the decree and must therefore be regarded as an application in the suit and that from whichever point of view the matter was looked at, the application that was made in that case fell within the rules indicated in ILR 1942 Nag 539: (AIR 1942 Nag 63) (H) and the Lahore and the Calcutta decisions that had been noticed.
In AIR 1648 Nag 308 (G) practically all the earlier decisions had been noticed inclusive of AIR, 1928 Mad 38 (C) and ILR 14 Luck 453: (AIR 1939 Oudh 155) (A) on which the decree-holder of the present case intended to rely.
12. In Awappa Tatoba v. Datto Krishna, AIR 1943 Bom 185 (L) it was held that an application to take a 'step-in-aid of execution' within the meaning of Article 182(5) of the Limitation Act must be an application made in accordance with law and to the proper Court as the words 'application made in accordance with law to the proper Court'' must also be read with words 'to take some step in aid of execution'. It was further held that an application for 'step-in-aid of execution'' need not be bona fide as the question of bona fide is immaterial for the purposes of Article 182(5).
13. To be in accordance with law an application must be in accordance with something which is provided by law or in accordance with something which has been ordered by a Court. There being already an executable decree in regard to the two sums, namely, Rs. 90/- and Rs. 600/- as stated above for which execution had not been taken, it follows that the applications in the present case which were relied upon as being applications as 'steps-in-aid of execution' were not in accordance with law.
In our opinion therefore the present application falls within the rules indicated in AIR 1948 Nag 308 (G) and AIR 1948 Bom 185 (L) and in the other decisions cited therein and relied upon there. We would, therefore, hold that the application by itself did not serve as a 'step-in aid of execution'' in the case.
14. There is another point which was takenin the grounds of appeal which according to theappellant serves to have limitation. It is thatin their written statement filed by the respondents on the 30th of March, 1946, they acknowledged their liability for the aforesaid Hems andwhat acknowledgment of liability under Section 19 ofthe Limitation Act was consciously made of a subsisting liability which save a fresh. period. Learned counsel for the appellant has not, however,been able to draw our attention to any such acknowledgment which might serve to save limitation. In the circumstances the decision of theCourt below is correct and the appeal must bedismissed with costs.