1. The question that arises for decision in this case is whether plaintiff's application for the execution of the revised mortgage-decree for sale in O.S. No. 57 of 1909 is barred by/limitation or not. The application was made more than three years from the date of that decree but plaintiff relies on his E.P. No. 17 of 1914 as giving him a fresh starting point under Clause 5 of Article 182 of the Limitation Act. The lower courts have differed in their view on the question whether that petition can be treated as one made in accordance with law for execution or to take some step in aid of execution the Subordinate Judge holding in the affirmative and the District Judge in the negative. The decree-holder is the appellant before us. To understand the nature of his contention it is necessary to state the circumstances in which E.P. No. 17 of 1914 came to be put in.
2. Plaintiff sued the defendants who are members of an Aliya-santhana family for the recovery of her mortgage-money by sale of the defendant's family property mortgaged to her and obtained a decree for sale. That decree was an exparte one against the 6th defendant. He applied to set it aside and the Court granted his application on his furnishing security for costs. He accordingly deposited in court a sum of Rs. 500 as security. The case was re-tried but the court again passed a decree in plaintiff's favour. That is the revised decree which is sought to be executed now. That provided that the mortgaged property should be sold and the sale proceeds after defraying the expenses of the sale be applied in paying plaintiff her mortgage amount, interest and costs Rs. 5,379-4-4 and the balance if any be paid to defendants and that if any balance still be due to the plaintiff it be paid by the 1st defendant as Ejman of the family; it also directed the 6th defendant to pay Rs. 22 for plaintiff's costs in the re-trial. In 1914 plaintiff applied against all the defendants to execute the above decree praying that the sum of Rs. 500 paid into court by the 6th defendant be paid out to her towards the decree-amount, That application is the E.P. No. 17 of 1914, referred to above. Notice was ordered to all the defendants; the 6th defendant appeared and opposed but it is not clear from the record before us whether the other defendants appeared or not. The court after hearing arguments directed that the Rs. 500 be paid to the plaintiff on account of costs and towards the partial satisfaction of the decree amount due to her. It may be mentioned that the costs included in the amount for which the property was ordered to be sold are more than Bs. 500. This money was subsequently paid out to plaintiff by the Court on her application. Plaintiff's present application gives credit for it towards the decree-amount.
3. The District Judge holds that E.P. No. 17 of 1914 though in form an execution petition is in substance only an application for payment to the decree-holder of a sum of money deposited in court by one of the judgment-debtors and as such is not an application to take any step-in-aid of execution. He relies on the rulings of the Calcutta High Court in Hem Chunder Choudhury v. Brojo Soondury Dabee I.L.R. (1881) Cal. 89 Fazale Imam v. Metta Singh I.L.R. (1884) Cal. 549, Gunga Pershad Bhoomick v. Debi Sundari Debea I.L.R. (1885) Cal. 227, and Ananda Mohan Roy v. Hara Sundari I.L.R. (1895) Cal. 196 in support of his view, distinguishing the Madras decisions cited to him viz., Venhatarayulu v. Narasimha I.L.R. (1880) Mad. 174, Kerala Varma Valid Rajah v. Shangaram I.L.R. (1892) Mad. 452 and Koormayya v. Krishnamma Naidu I.L.R. (1893) Mad 165:8 M.L.J. 296 on the ground that the money in the present case was not realised by any execution process. That does not seem to be a valid distinction. The District Judge overlooked the fact that as the money was deposited only as security an order of the Court was necessary to make it available for payment towards the decree-amount. An application to the Court for such a purpose and for payment out of the money is thus clearly necessary; and such an application is one in execution of the decree itself. In the Calcutta case Hem Ghunder Choudhury v. Brojo Soondury Debee I.L.R. (1881) Cal. 89 which is followed in the subsequent cases, money was deposited towards the decree-amount and no order of court was necessary to make it available for the decree, the decree-holder's application being merely for payment out. In the present case an order of Court was required to make the money available for the decree and getting such an order is a step in aid of execution. The Calcutta cases may therefore be distinguished. It may however be pointed out that even on the question as to whether an application for payment out of money in Court in execution is or is not an application for a step-in-aid of execution there is a clear difference of opinion between the Calcutta High Court and this Court. We must adhere to our view as there is no proper reason to depart from it. That view has been accepted by the Bombay and the Allahabad Courts. Vide Bapuchand v. Mugutrao I.L.R. (1896) Bom. 840 and Paran Singh v. Jawahir Singh I.L.R. (1884) All. 366. As pointed out by Farran, C.J. in the Bombay case execution is not fully completed till the money has been actually paid by the Court to the judgment-creditor or to some one on his account. See page 343. The judgment of the District Judge on the point cannot therefore be supported.
4. Mr. Lakshmana Rao for the respondents has however tried to support the order of the lower Appellate Court on another ground. He contended that under the decree in question as it is worded no application for payment of money could have been made except for Rs. 22, costs of the re-trial, and therefore E.P. No. 17 of 1914 so far as it prayed for the payment of the decree amount in general was not in accordance with law as it asked for a relief not granted by the decree, and in so far as it asked for the payment of Es. 22 by the 6th defendant, it was of no avail to save limitation against the contending defendants 1 and 4, as that part of the decree was not a joint decree under Explanation 1 of Article 182 of the Limitation Act. He relied on the case in Ramakrishna Kadirveluswami v. Eastern Development Corporation. Ltd. 43 I.C. 537 for the first part of his argument. We need not however consider whether we should follow this ruling for in the present case, the plaintiff's application to which the defendants were all made parties was actually allowed by the Court and his prayer to have the money paid towards the decree amount was granted. So long as that order is in force the defendants cannot be heard to say that the plaintiff's application was not in accordance with law. If the order was vitiated by any irregularity, defendants should have applied to set it aside; they have not done so. The first part of this contention of the respondents should therefore be overruled and the second part need not be considered.
5. In the result, the order of the District Judge must be reversed and that of the Subordinate Judge restored with costs in this and the lower Courts. The application for execution will be returned to the Court of the Subordinate Judge for further disposal.