1. This is an execution second appeal. The judgment-debtor is the appellant. The point for decision is, whether or not the lower Appellate Court was right in treating a certain application as being an application for execution which was barred by time.
2. The facts which it is necessary to set out in order to dispose of this appeal may be summarised as follows:
The date of the original Court's decree was the 29th of November 1913. This decree was affirmed by the First Appellate Court on the 17th of February 1914 and by the High Court on the 7th of December 1915. The decree was for specific performance, the judgment-debtor being ordered to restore to its original condition a certain water course.
3. The first application was made on the 19th of July 1916. The present application was made on the 9th of July 1921.
4. When the first application for execution was made in July 1916 a petition was made in the lower Court asking for the appointment of an Amin. An Amin was appointed and he submitted certain reports which gave rise to a certain number of objections on the part of the judgment-debtor. The Execution Court made certain orders unfavourable to the judgment-debtor and he appealed, The Appellate Court returned the case to the Execution Court for further proceedings. After this there were further proceedings taken in the Execution Court and eventually the Execution Court directed the judgment-debtor to file his share of fees of the Commissioner. A further order was made thereafter when the judgment-debtor was in default. An order for his arrest was passed and a further order for the attachment of his goods to realise the amount of the Commissioner's fee. Both these orders were appealed to the Appellate Court, but it seems that no order in stay of the original proceedings was passed by the District Judge. Meantime, while these appeals were actually pending in the Court of the District Judge, the Munsif, on the 6th of June 1918, made an order as follows:
The application is dismissed for the time being. Costs on the judgment-debtor.
5. There were other proceedings in this case of a later date after the District Judge had disposed of the appeals which were pending; in the High Court appeals were brought which were decided on 27th February 1919.
6. The present application, as I have said, was not made till the 9th of July 1921. It, is argued that because more than three years elapsed from the date of the Munsif's order (6th June 1918) the present application could not be entertained. It seems to me however, that it is impossible to yield to this argument.
7. The last order passed by the Munsif in the previous execution proceedings was on the 6th of June 1918 and it is a peculiar order. I have never before come across an order couched in similar language. The words 'dismissed for the time being' seem to me to exclude any notion of a final order and it cannot be contended that the earlier execution proceedings were finally brought to a close by the order in question.
8. For the respondents reliance is placed upon the judgment of their Lordships of the Privy Council in the case of Qamar-ud-din Ahmad v. Jawahir Lal 27 A 334 : 2 A.L.J 397 : 1 C.L.J 381 : 9 C.W.N. 601 : 15 M.L.J. 258 : 32 I.A. 102 : 7 Bom. L.R. 433 : 8 Sar P.C.J. 810 (P.C.); and after perusal of that judgment I think the principles which it embodies ought to be applied to the present case. That was a case also in which their Hardships had to consider whether a particular application which was made in the Execution Department was barred by reason of the fact that more than three years had elapsed since a previous order reporting to dispose of the execution proceedings had been passed. Their Lordships in dealing with the case remarked that the application was not barred, as the previous proceedings in execution were only suspended through no act or default of the decree-holder. Their Lordships pointed out that the application with which they were dealing was not an application to initiate a new proceeding but to revive and carry through a pending execution suspended as above mentioned. They pointed out in particular that the earlier order which was relied on for the purpose of constituting a bar was in no sense a final order and that I take to be the basis of their Lordships' decision. Applying that reasoning to the present case I am not prepared to hold that where a Court passes an order dismissing an application 'for the time being' that that is in any sense a final order. It was argued by the learned Counsel for the appellant that the case before their Lordships was one in which there had been a default on the part of the decree-holder. I do not, however, think that their Lordships' judgment proceeded on this ground. Further, from the order of 6th June 1918 it appears that when the Munsif recorded it he laid costs on the judgment-debtor. That fact would indicate that the decree-holder was not in any way in default otherwise there was no justification for laying costs upon the judgment-debtor. Having considered the question from the point of view of the judgment of their Lordships, I think the lower Court was right in holding that this application was not barred, although perhaps the reasons given by the learned Subordinate Judge in his judgment are not correct. It seems to me that the application was a proper application to entertain and that no bar of limitation could be set up against it. I, therefore, dismiss this appeal with costs.