1.This is a judgment-debtor's appeal in an execution case; the decree is an old one, dated July 11th, 1902, and the present application for execution was made on the 13th of November 1914. The first point taken on behalf of the appellant is that execution is barred by the twelve years' rule of limitation, The Court below has found that the present application is not a fresh application, but is a petition to the Court made in continuation of a previous application of the 20th of June 1912. The matter has been discussed before us as a point of law, but it is really a question of fact. If the application of the 13th of November 1914 was a fresh application it was barred by the twelve years' rule, on the other hand, if it was in substance and in fact a petition to the Court to take up the previous application of the 20th June 1912 and to proceed with the same according to law, then it was within time. As a matter of fact the application of June the 12th, 1912, was for sale of certain property. This was held up by reason of a suit instituted by the judgment-debtor's son, asking for a declaration that the property attached was not liable to sale in execution of this decree. That suit was actually decreed by the Court of first instance on May the 7th, 1914; but the present respondent successfully appealed, and the order of the Appellate Court was passed on the 28th of August 1914. The execution of the present decree had been suspended under an injunction granted on the 23rd of January 1914. When the present decree-holder had finally succeeded in getting the suit brought by the judgment-debtor's son dismissed, he came into Court with his application on the 13th November 1914. I agree with the Court below that this application was, in substance and effect, merely an application to the Court to take up and continue the proceedings instituted on June the 20th, 1912, and interrupted by the suit which was finally dismissed on the 28th of August 1914. There is no force in the suggestion put forward on behalf of the appellant that only the period from January 23rd, 1914, to the 7tb of May 1914, the date of the decree of the first Court, should be taken into account in the extension of the statutory period of twelve years. When the Court of first instance decreed the suit brought by the judgment-debtor's son, it is true in a sense that the injunction issued on January 23rd, 1914, ceased to have, any effect, but the place of that injunction was taken by the decree of a competent Court debarring the present respondent from proceeding with his execution in accordance with his application of June the 20th, 1912. That bar was only removed when the Appellate Court dismissed the suit brought by the judgment-debtor's son on the 28th of August 1914, that is to say, the judgment-debtor's son succeeded in holding up execution of the present decree in accordance with the application of June the 20th, 1912, from the 23rd January 1914 to the 28th of August 1914, and if this period be allowed, as it must be, the present application is saved from the twelve years' rule.
2. Another point argued before us is that the present application is barred under the three years' rule, in accordance with the provisions of Article 182 of the first Schedule to the Indian Limitation Act (Act IX of 1908). According to the respondent the decree has been kept alive by a continuous series of applications, each within the three years period, and each giving rise to a fresh period of limitation under paragraph 5 of the Article above referred to. The dates given by the decree-holder are July the 12th, 1902, October the 1st, 1904, September the 26th 1907, February the 11th, 1909, January the 16th, 1912, and June the 20th, 1912. What the judgment-debtor contends is that there was no application of October 1st, 1904, in consequence of which the application of September 26th, 1907, and all subsequent applications were legally barred by limitation. In substance this also comes before us as a question of fact and not of law. The record shows that there was an application by the decree-holder, dated October the 1st, 1904. That application has now been weeded out and it is somewhat difficult to ascertain with certainty what was its purport. I agree, however, with the learned Subordinate Judge that the materials on the record fully justify the presumption that this application was in fact what the decree-holder says it was, namely, an application for transfer of his decree for execution to another Court. If so, it was an application to the proper Court in accordance with law to take a step-in-aid of execution of the decree, and does operate to save limitation. I may notice that there was an application of the 13th of June 1913 by the present decree-holder on which stress has been laid by both sides. It will be seen that this application was brought while the application of June the 20th, 1912, was pending. The decree-holder, having found his former application held up by the maneuvers of the judgment-debtor's son, was making another effort to realize his money, or some part of it. He found that there was a decree of another Court, apparently that of the Subordinate Judge of Agra, in favour of his judgment-debtor, and he asked the Court to attach that decree and to permit him to proceed with the execution of the same for his own benefit. In this application of June 13th, 1913, the decree-holder recited the previous steps taken by him in execution and referred to the alleged application of October the 1st, 1904, as ah application for transfer of his decree. Ho objection was taken by the judgment-debtor on this point and execution was ordered to issue. I might refer to the case of Sheoraj Singh v. Kameshar Nath 24 A. 282; A.W.N. (1902) 63 as an authority for the proposition that this proceeding is conclusive against the judgment-debtor; but I prefer to regard the question of the existence and of the contents of this application of October' the 1st, 1904, as one of fact, to be determined in the manner already stated. A suggestion was, however, put forward on behalf of the appellant that, by reason of this intermediate application of 13th June of 1913, the application of November 13th, 1914, which is now before us could not be regarded as in continuation of the previous application of June the 20th, 1912. There is no force in this plea. The fact that execution against certain property of the judgment-debtor was being obstructed at the instance of the judgment debtor's son was no reason why the decree-holder should not attempt to get what he could out of other property of the judgment-debtor in the meantime, and should not ask to be allowed to proceed with his application of June the 20th, 1912, as soon as the obstacle to his doing so had been removed.
3. Finally there remains a question of fact. It is alleged before us that this application of June 13th, 1913, actually resulted in the realization of some money for the benefit of the decree-holder, which has not been allowed for in the present application. This point was taken in the memorandum of objections filed by the present appellant in the Court below. There is no allusion to it in the judgment of that Court, and it would appear that it was not pressed. It is certain that the materials on the record now before us do not enable us to arrive at a decision in favour of the judgment-debtor; that is to say, the judgment-debtor, who was pleading part payment and on whom the burden of proof lay, has failed to lay before the Court any materials from which it could arrive at a determination of the amount alleged by him to have been realized. We might overrule the objection at once on this ground, but it has been conceded before us on behalf of the respondent that some small amount was, in fact, realized under the execution started by the application of June the 13th, 1913. Under these circumstances I think it sufficient to direct that this question may be raised again in the Court below, and the judgment-debtor given credit for any amount which he satisfies that Court to have been, in fact, realized by the decree-holder in the proceedings initiated by the application of June 13th, 1913. Apart from this direction the present appeal fails and I would dismiss it with costs,
4. I only want to add a few words. I take a very strong view that in a case of this kind the question whether an application for execution of a decree is a new application or a revival or continuation of an old one is a simple question of fact. It is also a question of substance and not of form. In my view a disposition on the part of the Appellate Court to be led by Counsel into academic discussions upon supposed questions of law in matters of this kind only results in confusion, multiplication of authorities and difference of opinion. A careful study of the Full Bench case of this Court in Rahim Ali Khan v. Phul Chand 18 A. 482 (F.B.); A.W.N. (1896) 142, where there was a very full judgment of Mr. Justice Knox, shows that what they were laying down was that it was a question of fact in every case and that in the particular case all that' they were deciding was that there was evidence sufficient to justify the finding which had been arrived at by the Court below. The case is an example of the objection to dealing with this question as a question of law to which I have already referred, inasmuch as in that very case one learned Judge was compelled to hold that a decision of his own on precisely similar facts was wrong. It is impossible to imagine a better illustration of the evil, to my mind, of this class of argument which has been ably presented than we have before us. No question of principle is involved at all. The object of the limitation, which is after all only a question of procedure, in an execution of a decree, is to prevent parties sleeping on their rights. In this particular case the unfortunate decree-holder has made no less than eight applications in twelve years and yet it is contended that in some way or other he should be held to be time-barred. Such holding, if a Court were driven to it, would be most unfortunate, because to my mind it would be to turn what is intended as an instrument of justice into an instrument of injustice. I agree in the order proposed by my learned brother.
5. Except for the direction to the Court below that it should go into the question as to whether or not any amount was realized under the execution started with the application of the 13th June 1913 and that, in the event of an affirmative finding, the judgment-debtor should be given credit for the amount so realized the appeal is dismissed with costs including fees on the higher scale.