P.K. Tare, J.
1. This appeal under Section 47 of the Civil Procedure Code is by the judgment-debtors and is directed against the order, dated 30-11-1963, passed by Shri P.B. Thakre, Additional District Judge, West Nimar, Mandleshwar, in Civil Appeal No. 36-A of 1963, affirming the order, dated, 8-10-1963, passed by Shri A.K. Khare, Civil Judge Class II, Kasrawad, in Execution Case No. 2 of 1963.
2. A decree for possession of certain lands was passed in favour of the respondent on the condition that he deposited an amount of Rs. 1100. Upon such deposit, he would be entitled to claim back possession of the lands. That decree was passed on 4-7-1955.
3. The respondent earlier filed execution case No. 201 of 1957. In that execution, he did not deposit the entire amount of Rs.1100, but merely deposited Rs. 475 on 11-2-1958. As the entire amount was not deposited, the execution was dismissed on 14-4-60. Subsequently, the respondent filed the present execution on 12-4-1963, and in that he deposited the balance of Rs. 625 The present execution was opposed by the judgment-debtors mainly on two grounds, namely (i) that the decree was not executable as it was a preliminary decree, and (ii) that the execution was barred by time.
4. Both these contentions were negatived by the Courts below. In the present appeal, the learned counsel for the appellant did not press the point that the decree being a preliminary one was inexecutable, upon a perusal of the decree, it is clear that it was a final decree for possession of land subject to payment of the amount mentioned therein by the decree-holder. The decree further directs that the decree-holder would be entitled to mesne profits from 29-6-1953 upto the date of delivery of possession, and the said profits shall be ascertained in the execution proceedings. Therefore, no objection can be raised as to the executability of the decree, or the ascertainment of the mesne profits in execution proceedings.
5. However, the only point pressed by the learned counsel for the appellants was one relating to limitation. He urged that as it was a conditional decree, the decree-holder could not claim execution unless he fulfilled condition precedent. Therefore, if he executed the decree without fulfilling the condition precedent, he cannot save limitation in his own favour by carrying on such infructuous proceedings and by having got his execution dismissed for his own default. Therefore, it is contended that the present execution filed on 12-4-1963 would be barred by time.
6. This contention, in my opinion, is hased on a misapprehension. The execution application filed without complying with a condition precedent cannot be said to be not onein accordance with law. Therefore, althougha condition precedent for the performance ofthe decree may not be fulfilled, a party cancertainly file an execution and have it dismissed. Such action, without performance of thecondition precedent, will certainly save limitation in favour of a decree-holder. In thisconnection, I may refer to the observations ofChandavarkar J., in Nathubhai Kasandas v.Pranjivan Lalchand, (1910) ILR 34 Bom 189wherein the learned Judge held that an execution application would be in accordance withlaw, even though in the case of conditionaldecree the decree-holder does not fulfil the condition precedent. The real test would bewhether the Court can proceed with the execution petition. The performance or otherwise ofthe condition precedent would have nothingto do with the question whether the executionapplication is in accordance with law.
7. In Bhagwat Prashad v. Dwarka Pra shad ILR 2 Pat 809 : (AIR 1924 Pat 23), a Division Bench of the Patna High Court held that in order to make an execution application in accordance with law, what was necessary was to see whether the requirements of Order 21 Rule 11 to rule 14 had been complied with if an application was returned under Order 21, Rule 17, Civil Procedure Code, it could not be said to be not in accordance with law, although there may be certain formalities to be completed.
8. The case of Alagirisaniy Naidu v. Venkatachellapathy Ayyar, (1908) ILR 31 Mad 77 was also a case of a conditional decree, which entitled the plaintiff to recover a certain sum of money against defendants 1, 2, and 3, as also the hypothecated property, and the decree further ordered that the plaintiff would not be entitled to execute the decree till the 5th defendant's hypothecation was discharged by him. Therefore, the question arose whether an execution petition filed for executing the decree without satisfying the hypothecation of the 5th defendant would be an application in accordance with taw. The learned Judges held that the execution would be in accordance with law, although a condition precedent may not be performed. The learned Judges opined that the performance of a condition precedent would altogether be a different question from the one whether the execution is in accordance with law.
9. Subhedar A.J.C. in Mst. Bhuribi v. Hahmatbi AIR 1930 Nag 241, relying on the case of (1910) ILR 34 Bom 189 (supra), expressed, the opinion that an execution, which is otherwise in compliance with the provisions of Order 21, Rules 11 to 14 would not be rendered invalid and not in accordance with law merely because a condition precedent prescribed by the conditional decree is not performed.
10. The learned counsel for the appellants, however invited attention to the observations of a Division Bench of the Allahabad High Court in Jugal Singh v. Lochan Singh, AIR 1945 All 10. In that case, a conditional decree had been passed on the condition of payment of certain amount. The time for payment was fixed. The learned Judges held that the provision of the Limitation Act was applicable to the condition of deposit would be under Article 181, and not Article 182 of the Limitation Act, in that view, the residuary article was applied by the learned Judges. However, that case is of no assistance to the appellants The performance of a condition precedent is altogether different from the question whether an execution is in accordance with law. Therefore, the observations of the said Division Bench would not solve the present question.
11. To the same effect was the view expressed by a Division Bench of the Bombay High Court in Gopal Sattu v. Dnyanu Maruti AIR 1938 Bom 367, as was expressed in the Division Bench case of the Allahabad High Court. It is to be noted that a Division Bench of the Allahabad High Court, also on an earlier occasion in Narain Tewari v. Brij Narain Rai, AIR 1931 All 326, also taken the same view.
12. I may further refer to the observations of Kuppuswami Ayyar J. In Marimutnu Pillai v. Abdul Ganni Rowther AIR 1944 Mad 38. In that case, a decree for past and future mesne profits was passed, and an application for execution was made without paying the requisite court-fee in respect of future profits. The learned Judges held that the execution could not be said to be not in accordance with law merely because the execution petition was rejected without being registered on the ground that no court-fees had been paid. Even such an execution, without payment of the necessary court-fees, would, in opinion of the learned Judge, save limitation under Article 182 (5) of the Limitation Act.
13. To conclude, I am of opinion that this contention of the learned counsel for the appellants is without any force. It is clear from the observations made in the said cases that an execution petition cannot be said not in accordance with law merely because the condition precedent prescribed by the decree in order to entitle the decree-holder to a certain relief is not performed. The execution would be in accordance with law, if it complies with the provisions of Order 21, Rules 11 to 14, Civil Procedure Code.
14. For this reason, I would dismiss thepresent appeal with costs and uphold the orderof the Courts below. Counsel's Fee Rs. 100, ifcertified.