1. This appeal must be allowed. The facts briefly are these: A decree for sale was made so far back as in 1917. The application for execution out of which the present appeal has arisen was made on 18th October, 1926. The application that was made just before the present application was made on 2nd August 1923. 24th October 1923 was fixed for sale in execution of the previous application. On 4th October 1923, the decree-holder made an application to the Court stating that ha had given the judgment-debtor six months' time to pay up, that his application might be, for the moment, struck off as infructuous, and that the judgment-debtor might be saddled with the costs of the execution. On this application being made before the Court, it passed an order to the effect that unless and until the judgment-debtor's signature was obtained on the application, the Court would direct the decree-holder to pay his own costs of the execution, The Court fixed 9th October 1923, for the appearance of the judgment-debtor. The judgment-debtor did not appear on that date to signify his agreement to the grant of time, and thereupon on the same date (9th October 1923) the Court passed the following order:
An application is struck off. The decree-holder has not produced the judgment-debtor. The latter has not come forward to support decree-holder's application. The decree-holder should pay his costs.
2. On 18th October 1926, as I have already stated, the present application for execution was made, that is to say, more than three years after the previous application. The judgment-debtor met this application with the plea of limitation.
3. In the Courts below, the decree-holder sought to prove by oral evidence, that, as a matter of fact, the decree-holder and the judgment-debtor had agreed that the latter should have six months' time to pay up, and that, therefore, the decree-holder was at liberty to make an application for execution at any time within three years of the expiry of the period of six months. Apparently the Courts below thought that, in the circumstance, Article 181 would apply.
4. In appeal by the judgment-debtors it has been contended that the Courts below should not have allowed themselves to travel beyond the face of the record, and the application was virtually time barred.
5. On the facts stated above it seems to me to be quite clear that the application of 18th October 1926, was time barred. When the decree-holder in his application dated 4th October 1923, stated that he had given the judgment-debtor six months' time, he was not taken on his own word, and the Court directed that the judgment-debtor should appear in order to verify the application. It may be that the application was based on a fact, or it may not have been based on a fact. The trend of the argument of the learned Counsel for the respondents before me has been that unless the judgment-debtor was really anxious to have time, the decree-holder was not likely to say so in his application. I would not travel into the region of speculations, but it goes without saying that the decree-holder may have had his own reasons for delaying the execution. If the judgment-debtor was anxious to have time, he would have been in the Court earlier than the decree-holder himself. Anyhow, the Court wanted to be satisfied that the judgment-debtor was a party to the application and it was not satisfied. The result of the Court not being satisfied that the judgment-debtor had asked for time was that it ordered the decree-holder to bear the costs of the execution proceedings. If the decree-holder had granted time to the judgment-debtor at the latter's request the result would have been that the cost of the execution proceedings would have been borne by the judgment-debtor.
6. The question is whether after this order of 9th October, 1923, was passed, was it open to the decree-holder to come before the Court, and to make an attempt to prove an oral agreement, in order that he might bring into his aid Article 181, Lim. Act.
7. For the respondents the learned Counsel has cited Pull Bench cases: Chattar Singh v. Kamal Singh : AIR1927All16 and Baij Nath v. Ram Bharos : AIR1927All165 . Those cases are really against the decree-holders. They establish this that where an execution application is struck off, for the convenience of the proceedings in Court, the decree-holder is entitled to ask those proceedings to be revived. Here the decree-holder was at liberty to proceed with the execution application. He failed to prove, though called upon to do so, before the Court, while the previous execution proceedings were pending that the parties had agreed to a grant of time. In the circumstances, the only article that could apply to the subsequent application for execution would be Article 182, Lim. Act, and not Article 181. I am of opinion that the order of 9th October 1923, must be treated as a definite order against the decree-holder, by which the Court declined to accept the decree-holder's allegation of fact, namely, that six months' time had been granted to the judgment-debtor. In that case, it should not be open to the decree-holder to prove, in the subsequent proceedings, that his statement of fact made on, 4th October 1923, was true. Even if it be the case that the decree-holder is not estopped from proving in the subsequent proceedings, the fact that he had granted six months' time, Article 182 would apply and not Article 181. Article 182 is the article framed for an application to the execution of decree. Article 181 could be brought into play only when there were definite circumstances which would make Article 182 inapplicable. In my opinion those circumstances should not and cannot include an alleged fact that the judgment-debtor had been given time out of Court, without any record of that fact being placed in the proceedings.
8. The result is that the appeal succeeds, the decrees of the Courts below are set aside, and I hereby dismiss the application for execution, made on 18th October 1926.
9. The appellants will have their costs throughout.