1. We are of opinion that this appeal must be allowed, and we think that in all probability Mr. Justice Walsh would have decided this matter differently if there had been called to his attention the cases of Desraj Singh v. Karam Khan (1896) 19 All 71 and Ruddar Singh v. Dhanpal Singh (1903) 26 All 156. Ganga Jal obtained two decrees against Sat Narain Lal, the judgment-debtor, on the 12th of May and the 11th of June 1917, respectively. They were decrees of the Bombay Court and were transferred to Jaunpur for execution. Thereupon Sat Narain Lal commenced a suit alleging that these decrees had been obtained by fraud. The judgment-debtor asked that execution proceedings should be stayed until the decision of his suit, and the Munsif, who was already in control of the execution proceedings in the Court of Jaunpur, made an order:
Execution proceedings shall be stayed until decision of the regular suit.
2. This was on the 20th February 1918. When the end of June was approaching and the Munsif was desirous of showing how expeditiously he had cleared his list, he passed the following order with regard to the application in execution:
As the regular suit is not decided the case be struck off. Costs on the judgment-debtor.
3. This had the incidental advantage of improving the Munsif's list, but it had the disadvantage of causing a great deal of difficulty and argument in several Courts, and was not an order sanctioned by any rule.
4. The suit of the judgment-debtor was proceeded with and on the 9th of December 1919 it was found by the Munsif of Jaunpur that the allegations of fraud ware unfounded and that the Bombay decrees were good decrees. The judgment-debtor filed an appeal and that was decided on the 30th of March 1922, again adversely to the judgment-debtor. Thirteen months after on the 23rd of April 1923, the decree-holder applied for execution of his decree and not unnaturally the judgment-debtor objected. The objections were repelled by the first Court. The lower appellate Court said the objections were well founded and that the proceedings in execution were time-barred. Mr. Justice Walsh, on the authorities presented to him, came to the conclusion that the execution proceedings were not time-barred and that Ganga Lal could enforce the decrees.
5. From a consideration of the authorities, and especially the two we have mentioned in the earlier part of our judgment, Desraj Raj v. Karam Khan (1896) 19 All 71 and Ruddar Singh v. Dhan Pal Singh (1903) 26 All 156, we are of opinion that the matter can be disposed of without difficulty. We think that these two cases establish this proposition, namely that if there be an obstacle opposed to the execution proceedings, as there was in this case, namely, the order that execution proceedings, shall be stayed until the decision of the regular suit, as soon as that obstacle is swept away by a Court of competent jurisdiction, namely the trial Court, the duty again arises upon the decree-holder to take execution proceedings within three years, notwithstanding the fact that the judgment debtor may have in the interval filed an appeal. It has been contended before us that the phrase used by the Munsif:
execution proceedings shall be stayed until decision of the regular suit,
6. Meant that the stay order not only operated in the Court of first instance, but also in the lower appellate Court, in the High Court, and presumably, if the case was of a nature in which it was possible to go to the Privy Council then in the Privy Council also. We do not read that order in that way at all, and we believe that the true construction of the words used by the Munsif is that execution was stayed until the suit instituted in the Munsif's Court was heard and determined, and that on the 9th of December, when the decree adverse to the plaintiff was pronounced, at that very moment the bar to 'execution proceedings disappeared, and it was open to the decree-holder and was his duty, at once to apply that the previous execution proceedings which had been struck off on the 29th June 1918, be restored and execution proceeded with. To that application there of course would have been opposition, and then it would have been open to whatever Court had jurisdiction to try the question of a further stay to look into all the circumstances.
7. One of the material circumstance would have been the nature of the evidence which the plaintiff brought forward in the Court of the Munsif of Jaunpur to support his allegations of fraud and the likelihood of an appeal being successful. This is to say, quite different considerations applied on the 20th of February 1918, to those which would have applied on the 9th of December 1919, and thereafter when the matter in issue between the plaintiff and the defendant had already been decided by one competent; Court adversely to the plaintiff, the judgment-debtor, and a Court might very well, on an objection by the judgment-debtor to the continuance of execution proceedings, have made an order giving to the decree-holder full permission to execute his judgment notwithstanding the pendency of an appeal. It has not, of course, been argued that the mere pendency of an appeal operates as a stay, but it is said that by virtue of this order of the 20th of February 1918, the stay, as we have said, continues right away through in Court after Court.
8. We are unable to agree with that contention at all, and there has been cited to us the case of Madho Prasad v. Draupadi Bibi AIR 1921 All 99, in which, although there was an injunction restraining the sale 'pending the final decision of the suit,' a Bench of this Court held that the injunction granted by the appellate Court terminated, and the right to make the application accrued on the date of the dismissal of the suit by the trial-Court. Mr. Justice Piggott had very little doubt about the matter, Mr. Justice Walsh assented; but it is clear that he felt some difficulty. He does however say at page 179 of the report:
If it were not for the presence of the word 'final' in this order and if the language had merely been' pending the decision of the suit I might have had no difficulty in agreeing with my learned colleague; but if my opinion had been asked, after looking at those authorities, I think I should have come to the conclusion that the use of the word 'final' by two Judges of this Court must have meant the disposal of the suit by a final unappealable order.
9. Now in the case under consideration the word 'final' does not appear at all, and we are satisfied that this case is covered by, and is indistinguishable from, the principles enunciated in the two cases we mentioned at the outset of our judgment.
10. The position, therefore, on the 9th of December 1919, was that the bar which, came into existence on the 20th of February 1918, disappeared by the decree pronounced in favour of the decree-holder and that from the 9th of December 19l9 and thereafter, there was no obstacle of any kind which stood in the decree-holder's way to make either a fresh application for execution or asking that the formal order which had been 'struck off' might be restored.
11. In these circumstances we set aside the decision of the learned Judge of this Court; we restore the decision of the lower appellate Court and we declare that the application for execution made on the 23rd of April 1923 was on that date beyond time. Having regard to the judgment-debtor having set up in the Munsif's Court at Jaunpur a case based on fraud, which failed, and having appealed unsuccessfully, we are of opinion that no order as to costs should be made in this and the connected appeal.