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Nawab Shuja-ul-mulk Bahadur Vs. Umir-ul-umra Bahadur and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtChennai
Decided On
Reported in(1925)49MLJ498
AppellantNawab Shuja-ul-mulk Bahadur
RespondentUmir-ul-umra Bahadur and ors.
Cases ReferredLimited v. Jnanendra Nath Bose
Excerpt:
- - singaravclu vannian (1917)33mlj543 .held, that the remedy against the income of the darga was available to the plaintiff only after he exhausted his remedies against the 1st defendant, and therefore the plaintiff had 12 years' time from 1915 when he failed to get the amount from the 1st defendant. all that the decree says is 'in case of failure to recover the costs from the 1st defendant, the same shall be recovered from the income of the trust property. ' can it be said in this case that the plaintiff has 12 years from the date of the decree for pursuing hiss remedy against the 1st defendant, and, on failure to realize the amount from him, he could proceed against the income of the darga for another 12 years ? where the decree does not specifically mention the period after which.....devadoss, j. 1. the main question argued in this appeal is whether the execution of the decree in plaintiffs' favour is barred by reason of section 48 of the code of civil procedure. the district judge has held that the execution application is not barred by limitation and the 1st respondent in the lower court has preferred this appeal. the decree in o.s. no. 17 of 1901 was passed by the district court of kurnool on 30th march, 1904. it was confirmed by the high court on 17th january, 1907. the defendants in that suit were the trustees of a religious and charitable institution. the defendants were removed from the office of trustees, and the 1st defendant was directed to pay the plaintiff's costs and in case the plaintiff was unable to obtain the costs from the 1st defendant, he was to.....
Judgment:

Devadoss, J.

1. The main question argued in this appeal is whether the execution of the decree in plaintiffs' favour is barred by reason of Section 48 of the Code of Civil Procedure. The District Judge has held that the execution application is not barred by limitation and the 1st respondent in the Lower Court has preferred this appeal. The decree in O.S. No. 17 of 1901 was passed by the District Court of Kurnool on 30th March, 1904. It was confirmed by the High Court on 17th January, 1907. The defendants in that suit were the trustees of a religious and charitable institution. The defendants were removed from the office of trustees, and the 1st defendant was directed to pay the plaintiff's costs and in case the plaintiff was unable to obtain the costs from the 1st defendant, he was to recover them from the income of the trust property. Attempts were made by the plaintiff to recover the costs from the 1st defendant, and he recovered only a portion and a considerable amount now remains to be recovered. The plaintiff's legal representatives have now applied for execution against the income of the religious and charitable institution, namely, the Darga. The contention of Mr. Viraraghava Aiyar for the appellant is that the decree being more than twelve years old is incapable of execution by reason of Section 48 of the Code of Civil Procedure. Section 48, Clause (1) is in these terms:

Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from (a) the date of the decree sought to be executed, or (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment or delivery in respect of which the appellant seeks to execute the decree.

2. The decree in this case being a decree for money, and there being no time fixed after which the plaintiff was, to proceed against the Darga property, it is urged, the application after twelve years from the date of the decree is barred under Section 48. The District Judge, following Aiyasamier v. Venkatachala Mudali ILR (1916) M 989 and Narayana Aiyar v. Singaravclu Vannian : (1917)33MLJ543 . held, that the remedy against the income of the Darga was available to the plaintiff only after he exhausted his remedies against the 1st defendant, and therefore the plaintiff had 12 years' time from 1915 when he failed to get the amount from the 1st defendant.

3. Under the Civil Procedure Code of 1882, Section 230, ' a decree for payment of money became barred after 12 years from (a) the date of the decree sought to be enforced or of the decree on appeal affirming the same, or (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date --the date of the default in making the payment or delivering the property in respect of which the applicant seeks to enforce the decree. ' Under the old Civil Procedure Code attempts were made to get over the 12 years' period by showing that the decree was not a decree merely for money. In Vaidhi-nadasamy Aiyar v. Somasundaram Pillai ILR (1905) M 473 : 15 MLJ 126 it was held that ' a decree directing the sale of mortgaged properties in default of payment of money is a decree for money, whether there is a direction to pay personally or not and whether the remedy against the property is exhausted or not. Such decrees will be money decrees under Sections 230, 258 and 295 of the Civil Procedure Code although they will not be so under Sections 220 and 222 of the Code. ' Under the present Code there is no distinction made between a decree for money and any other decree. Section 48 is clear in its terms, and no distinction therefore could be made between a decree fop money and any other decree. The section provides for decrees whereby money is made payable on or after a certain date or money is payable by instalments and for cases of recurring liability as in the case of decrees for maintenance, etc. The question, therefore, is whether a decree which does not come within one of the exceptions to the 12 years' rule in Section 48 can be executed after the expiry of 12 years from the date on which it was passed or affirmed by the Appellate Court. , The argument advanced for the respondent and which has found favour with the Lower Court is that the decree against the income of the Darga was unexecutable till the remedy against the 1st defendant was exhausted. The terms of the decree are against such a construction. All that the decree says is ' in case of failure to recover the costs from the 1st defendant, the same shall be recovered from the income of the trust property.' Can it be said in this case that the plaintiff has 12 years from the date of the decree for pursuing hiss remedy against the 1st defendant, and, on failure to realize the amount from him, he could proceed against the income of the Darga for another 12 years Where the decree does not specifically mention the period after which the decree becomes executable against a particular individual or institution, the decree is deemed executable from the date on which it is passed : supposing a decree directs the principal debtor to pay the decree amount and that on the failure of the plaintiff to recover it from the principal debtor, he should be entitled to proceed against the surety, it cannot be said that the creditor has 12 years' limitation against the principal debtor and another 12 years against the surety. The decision in Aiyasamier v. Venkatachala Mudali ILR (1916) M 989 : 31 MLJ 513. which was followed in Narayana Aiyar v. Singaravelu Van-nian : (1917)33MLJ543 . no doubt supports the contention of the plaintiff to some extent. In Aiyasamier v. Venkataehala Mudali ILR (1916) M 989. a Full Bench held that ' where a mortgage decree provides for recovery of any balance from the other properties of the mortgagor in case the sale-proceeds of the mortgaged properties are found insufficient to satisfy the entire decree amount, the decree-holder has, under Section 48 of the Civil Procedure Code, twelve years for the recovery of such balance reckoned from the time when it is ascertained to be due. Abdur Rahini, Officiating Chief Justice, observed at page 997:

When the reliefs given in respect of those rights are distinct and enforceable at different periods of time, then, for purposes of execution, there is, in fact, more than one decree, though embodied in one document. In such cases, it is only reasonable to hold that the date of the decree sought to be executed within the meaning of Section 48, Clause (a) of the Code of Civil Procedure, may not be what if bears on its face. It is the date when the particular adjudication sought to be enforced becomes ripe for execution according to the terms of the decree.

4. This observation is as regards a mortgage decree whereby the other properties of the mortgagor could be proceeded against only after exhausting the remedy against the mortgaged properties. In the present case who is to determine whether all the remedies against the 1st defendant have been exhausted The decree simply says that in case of failure to recover the costs from the 1st defendant, the same be recovered from the income of the trust property. It is not a condition precedent in this decree that all the remedies against the 1st defendant should be exhausted before the income of the property could be proceeded against. This case on the'' facts is distinguishable from the decision in Aiyasamier v. Venkatachala Mudali ILR (1916) M 989. But the authority of the Full Bench decision in Aiyasamier v. Venkatachala Mudali ILR (1916) M 989. has been considerably shaken by the decision of the Privy Council in Khulna Loan Company v. Jnanendra Nath Bose 22 CWN 145. There the same point as was under consideration in Aiyasamier v. Venkatachala Mudali ILR (1916) M 989. was the subject of decision. The Calcutta High Court disallowed the contention that the decree should be read as directing the payment of money at a certain date, that is, after the mortgaged properties had been sold. The learned Judges observed:

The terms of Section 48 seems to us to be perfectly clear, and according to that section time runs from the date of the decree. The date of the decree is fixed by Order 20, Rule 6, and we cannot understand how there can be any other date of the decree from which limitation should run. It has been suggested that this case may be regarded as one in which the decree directed the payment of money to be made at a certain date, namely, after the mortgaged property had been sold. It appears to us that a direction of such a kind would, certainly, not be a direction to pay money at a certain date. The date would not be certain.

5. On appeal to the Privy Council, the judgment of the Calcutta High Court was affirmed. In the course of the argument the learned Counsel for the appellant urged the very same argument that was put forward in Aiyasamier v. Venkatachala Mudali ILR (1916) M 989 : 31 MLJ 513. He submitted it was not an effective decree as it could not be enforced until all the mortgaged properties had been sold, and time therefore did not begin to run against the appellant from the date of the decree. The law required that two decrees ought to be made : ' The appellants are entitled to 12 years from each decree, that is, from the decree for sale as well as the decree under Section 90. ' Lord Dunedin, in delivering the judgment of their Lordships, simply stated : ' Their Lordships did not see any reason to differ from the judgment of the High Court in this case. ' It is suggested for the respondents that this decision has not been reported in the Indian Law Reports and therefore it is not binding on us. The Indian Law Reports Act (Act XVIII of 1875) Section 3 is in these terms:

No Court shall be bound to hear cited, or shall receive or treat as an authority binding on it, the report of any case decided by any of the said High Courts on or after the said day, other than a report, published under the authority of the Governor-General in Council.

6. This Act has no application to a decision of the Privy Council, and, therefore, we are at liberty to refer to an unauthorised report of the decision of the Privy Council and, if we are satisfied that it is a correct report, we are bound to follow it. The point was specifically raised before the Privy Council, and their Lordships overruled the contention of the appellant. This decision of the Privy Council was followed in Baranashi Koer v. Bhabadeb Chatterjee (1921) 34 CLJ 167. In Rameshwar Singh v. Homeshwar Singh (1920) 40 MLJ 1 there was no executable decree against Ekradeshvar on the date it was passed. As observed by their Lordships:

The decree against Ekradeshvar could not have been executed without a further application. This application could not have been made till Ekradeshvar had come into possession of the property of Janeshvar, and by Article 181 in the schedule to the Limitation Act, the period of limitation for making an application is three years from the time when the right to apply accrues.

7. In the present case no fresh decree need be passed against the Darga as the decree of 1904 enables the plaintiff to proceed against its income on his failure to recover the decree amount from the 1st defendant.

8. It is contended by Mr. K. V. Krishnaswami Aiyar for the respondents that there was no executable decree against the income of the Darga till the remedy against the 1st defendant was exhausted. He contends that the Privy Council case even, if it be an authority, cannot apply to the present case, as the mortgagor was only one person against whom the decree was passed, though the mortgaged property was to be proceeded against in the first instance and afterwards his other properties were to be proceeded against. I do not think the Privy Council decision can be explained away on this basis. Whether the decree is against one person or more than one person, unless a time is fixed for proceeding against any particular person, limitation under Section 48 would begin to run from the date of the decree and not from any other date.

9. It is also contended that time should be calculated only from the date of the decree which is sought to be executed, namely, the decree against the Darga, in other words that the decree consists of two decrees, one against the 1st defendant and the other against theDarga. Whether the remedy is against one or more persons is immaterial so long as no time is fixed for the execution of the decree against the particular individual. The mere fact that, in the first instance, the 1st defendant should be proceeded against and on failure to recover the amount from him the income of the Darga property should be proceeded against is not tantamount to fixing a particular date, after which alone the decree against the Darga could be executed. If such a contention is tenable the question would arise : When was the failure to recover the costs from the 1st defendant and what amounts to a failure to recover costs from the 1st defendant I do not think such a contention is tenable in the absence of a specific date in the decree after which alone it is to be executed against the particular individual or institution.

10. In Gopaldas v. Tribhowan ILR (1920) B 365 it was held that the application for execution of a mortgage decree more than twelve years after the passing of the decree absolute was barred by Section 48 of the Civil Procedure Code. In that case the main argument was that the decree was under the Code of 1882 and that Section 48 did not apply to a decree passed under the old Code. A Bench consisting of the learned Chief Justice and Fawcett, J. held that that contention was untenable.Macleod, C. J., observed at page 376:

It would have been better if the attention of holders of mortgage decrees had been drawn to the alteration made by Section 48 of the Code of 1908, so that they might have been able to realize that no fresh application for execution could be entertained after the expiry of twelve years from the date of their decrees.

11. In that case the defendants' counsel did not raise the contention that the mortgagee decree-holder had 12 years' limitation from the time the mortgaged property was sold for proceeding against the other properties of the mortgagor.

12. The case in Aiyasamier v. Venkatachala Mudali ILR (1916) M 989. was decided in August, 1916 and the decision of the Privy Council in Khulna Loan Company v. Jnanendra Nath Bose 22 CWN 145. was on 21st June, 1917. The, decision of the Madras High Court does not seem to have been brought to the notice of their Lordships ; but that is no ground for holding that the decision in Aiyasamier v. Venkatachala Mudali ILR (1916) M 989. is a proper enunciation of the law on the subject. I therefore hold that the plaintiffs' application for execution is barred under Section 48 of the Civil Procedure Code.

13. The next contention on behalf of the respondents is that the order was made on 3rd March, 1916, for payment of the amount due in three instalments and the application therefore is in time. Under Order 20, Rule 11, the application is to be made to the Court which passed the decree within six months and the order could be made only with the consent of the decree-holder. But the application to pay in instalments was made long after the passing of the decree ; and from the order of the District Judge it does not appear that the plaintiffs consented to receive the amount in three instalments. It is not necessary to consider this in detail.

Wallace, J.

14. I regret that in this case I have not been able to agree with my learned brother.

15. It is clear that a narrow interpretation of the strict terms of Section 48, Civil Procedure Code, places great difficulties in the application of the section to particular cases. If the decree is not executable except on the happening of certain contingency and that contingency does not happen until after twelve years, is the decree a waste paper Or to take an illustration given by Sadasiva Aiyar J., in Aiyasamier v. Venkatachala Muduli ILR (1916) M 989. when a compromise decree is passed making a certain sum payable to a minor girl on her marriage and she does not marry until after 12 years from the date of decree, is the decree a waste paper In the case of such decrees, it is clear that the decree itself implies that there shall be a subsequent order or direction by the Court that the time for executing the decree has arrived and that from that date the decree is executable and time will begin to run. Such an order need not perhaps be explicit although it will be better if it were so ; but it certainly is implicit. The Court in deciding whether such a decree was time-barred, would enquire first, whether 12 years had run from the date when the decree became executable, that is, it would decide as on what date the decree became executable and then begin to compute the 12 years from that date. This is on the well-known principle that a decree which cannot be executed cannot be time-barred. The Courts would stultify themselves if they administered justice on the theory that a party will be barred from a relief because he did not seek it during a period when it was not open to him to seek it.

16 In order to reconcile this principle with the strict wording of Section 48, Civil Procedure Code, some learned Judges have at times held that the phrase ' sought to be executed ' in Clause 1(a) indicates that the date has to be ascertained with reference to the time when the decree becomes capable of execution. Other learned Judges have held that the word ' certain ' in Clause 1(d) means ' that which may be rendered certain.' I would suggest that the difficulty may be resolved by giving a liberal interpretation to the words ' or any subsequent order ' in Clause 1(b). Clearly such subsequent order must be one contemplated by the decree. But if the decree requires such subsequent order to be made before the date on which the money is to be paid or the property is to be delivered becomes certain, and if that date is not certain without such order, then limitation will begin to run from the date of such order. The order becomes in a sense a decree within a decree. It would be passed naturally by the Court which passed the decree acting as such and not by the Court executing the decree see Jurawan Pasi v. Mahabir Dhar Dube ILR (1918) A 198. Such an order, as instanced in that case, would be an order under Order 20, Rule 11, Civil Procedure Code. But I can see no reason why the phrase should be confined to such orders. In the case of a decree on the face of it not immediately executable, there ought to be a subsequent order declaring it to be now executable.

17. If the decree directs payment on a certain contingency happening, there ought to be a subsequent order declaring that that contingency has happened. If the decree is not executable against a certain person until and unless a certain contingency happens, there ought to be a subsequent order declaring that that contingency has happened and fixing the date of its occurrence. Such subsequent order will direct the payment of money or delivery of property to be made at a certain date, and Clause 1(b) will then apply in terms.

18. The decree now before us declared that the trust was only liable if and when the 1st defendant failed to satisfy the decree personally and to the extent to which he so failed. This implies that, before the trust can be made liable, there must be a further order of the Court, implicit if not explicit, that the 1st defendant has failed by some particular date to satisfy the decree, and laying down to what extent he has failed. Only then has the right to execute the decree against the trust accrued, and only then, on the general principle laid down above, does the decree become executable against the trust and limitation begins to run against the decree-holder in respect of that relief. This principle is clearly not affected by the fact that the decree was immediately executable in some other form or against some other person. When the decree-holder has been prevented by the decree itself from seeking his remedy in the form in which, or against the person against whom, he now wishes to seek it, then the decree itself implies that there must be a subsequent order removing this bar to execution in the desired form, before the decree-holder can have the right to execute it in that form or against that person. The decree-holder, when he comes to execute against the trust is m substance, although perhaps not in form, asking for an order that his remedy against the trust has opened, and it is the duty of the Court to consider whether it has so opened, that is, whether there is a failure of the first party to satisfy the decree, before it allows the decree-holder to pursue his remedy against the trust.

19. It is clear also, I hold, that in the case of a decree like the one now before us, it must be the Court and no one else who is to be the judge when the second remedy provided for in the decree has opened, that is, in this case, when the failure of the first party to satisfy the decree occurred. It cannot be the decree-holder because it would be always open to the second party against whom execution was sought to contend that the decree-holder had not exhausted his remedies against the principal party or that the principal party was colluding with the decree-holder against him and therefore it was impossible to say that there had been as yet any failure to satisfy the decree, and an executing Court would certainly not permit the decree-holder to execute against the second party until he has satisfied the Court that the principal party has failed to satisfy the decree, and that there is no further reasonable hope of his being able to satisfy it. Therefore it must be left to the Court to decide between these conflicting views. That is only to say that the subsequent order of the Court which the 'decree implies must be a judicial order. The Court will further enquire whether the decree-holder has been diligent in coming forward to enforce his remedy against the second party, diligent both in enforcing his remedy against the first party and diligent in coming forward to obtain an order, implicit or explicit, that his remedy against the second party has now opened. Unless the decree-holder at once diligently executes his decree against the principal party, his remedy against the second will not accrue, and the ordinary 12 years' rule will apply. But if owing to circumstances not under his control, some obstruction to execution which he has to surmount, he is unable, say for some years, to pursue to the end his remedy against the principal party, so that his diligence and bona fide pursuit of his remedy against the principal party occupies, say, 12 years from the date of the decree, then, unless the view I indicate prevails, he is deprived of the very remedy against the second party which he obtained by his decree.

20. I would hold therefore that in a case like the present the decree-holder's remedy against the second party accrued not on the date of the decree but on the date of the failure of the first party to satisfy the decree, which date must be fixed by an order of Court, and that limitation begins to run in respect of that remedy from the date of that order. Such order would, in my view, have the effect of a fresh decree directing the payment of money by the second party to be made from the date of its order, and Section 48 would apply to it as such ; that is, 12 years' limitation for the relief against the second party will run from the date of such an order.

21. An analogous case would be that of a mortgage decree which provides for recovery of any balance from the other property of the mortgagor in case the sale-proceeds of the mortgaged property are insufficient to satisfy the entire decree amount. In such a case a Full Bench of this Court has held that when the reliefs given in respect of rights under a decree are distinct and enforceable at different periods of time, then for purposes of execution there is in fact more than one decree although embodied in one document, and that the decree-holder has, under Section 48, 12 years from the time when such balance, is ascertained to be due, thus implying a subsequent order of the Court declaring on what date that sum was ascertained to be due. It must be admitted that the authority of this decision has been shaken by a later Privy Council case reported in Khulna Loan Company v. Jnanendra Nath Bose 22 CWN 145. a case reported with disconcerting brevity but it would appear that the Subordinate Judge in that case dated the 12 years from an order under Section 90 of the Transfer of Property Act. This was an appeal from the Calcutta High Court which had followed the view that if the decree originally provided for realization of the balance from the other property of the judgment-debtor, an order under Section 90 of the Transfer of Property Act was not necessary. See Lalla Tirhini Sahai v. Lallo Hurruck Narain ILR (1893) C 26 and in any case was an order in execution and not an order in the suit. It may be that the High Court in that case held that the terminus a quo of Section 48 could not be an order in execution, and therefore held the application for execution barred, and that their Lordships of the Privy Council who give no reasons for their judgment followed that line of reasoning. I do not think that report is full enough for us to conclude that that ruling has reversed the principle of our Full Bench ruling. It may be noted that another Privy Council ruling in Rameshwar Singh v. Homeshwar Singh (1920) 40 MLJ 1. holds with reference to an interpretation of Article 182 of the Limitation Act that in the case of a decree not executable except on the happening of a particular contingency, time will not begin to run until that contingency occurs. If the ruling in Khulna Loan Company v. Jnanendra Nath Bose 22 CWN 145. really means that in all cases of decrees, whether immediately executable or not, the decree is to run from its date, that will conflict with the principle of this ruling, since in that case the decree may become time-barred before it ever becomes capable of being executed. The case in Narayan v. Timmayya ILR (1906) B 50. a case of a decree against a principal and a surety does not assist. The decision there turned on the question whether where the decree-holder might proceed either against the principal or against the surety, execution proceedings against the former will avail to save the bar of time against the latter. Narhar Raghunath v. Krishnaji Govind ILR (1912) B 368. is somewhat analogous to the present case as the personal remedy against the judgment-debtor only came into force on the happening of a certain contingency and the Court held that limitation began to run from the happening of that contingency. The decision in Maharaja of Benares v. Lalji Singh ILR (1912) A 636. does not seem to me to assist and I do not think it necessary to dwell on other cases cited before us.

22. My general conclusion then is that what is essentially required before limitation begins to run in a case of this kind is an order of the Court stating that the decree-holder's right to execute against the second party has either accrued from a fixed date from which time will begin to run against him in the matter of that supplemental execution or that it has not accrued at all. In the present case there is no such order and I think it is essential that there should be such an order. The Lower Court has not adopted the proper principle in deciding that the right accrued in 1915. It fixes that date merely because the decree-holder chose then to abandon his remedy against the 1st defendant, and to seek his remedy against the trust, that is, it has allowed the decree-holder himself to decide when his right to proceed against the trust began. I am clear that that is not the proper way in which the case should be decided. I would hold therefore that the Lower Court's order is not correct and that the case will have to go back to the Lower Court being the Court which passed the decree for a fresh decision on the principles laid down above (1) as to whether the plaintiff's right to execute the decree against the trust has accrued, (2) if so, on what date it accrued, and (3) whether calculating limitation from that date the decree is, or is not, time-barred.

23. By Court--In view of the difference of opinion for a disposal of the appeal, we think that the preliminary point should be referred to another Judge under Section 98, Civil Procedure Code.

Where a decree directs that money be recoverable from a party only on failure to recover from another party, does the execution of the decree become barred against the former after 12 years from the date of the decree

24. This appeal again came on for hearing before Phillips, J.

25. L.S. Viraraghava Aiyar for appellant.

26. N. Swaminatha Aiyar for K. V. Krishnaswami Aiyar for respondents.

27. The Court delivered the following.

28. The question ' Where a decree directs that money be recoverable from a party only on failure to recover from another party, does the execution of the decree become barred against the former after 12 years from the date of the decree ?' has been referred to me under Section 98 of the Code of Civil Procedure owing to a difference of opinion between two learned Judges of this Court. The material portion of the decree in this case is, ,

That 1st defendant do pay to plaintiff his costs of the suit, Rs. 1,129 ; that in case of failure to recover these costs from 1st defendant the same be recovered from the income of the trust property.

29. The question put in the above form has not been definitely answered in any reported decisions, but a very similar question is the subject of conflicting decisions. That similar question is whether when there is a decree directing sale of mortgaged property and, in default of the decree amount being realized, directing payment by the mortgagor, the decree is capable of execution more than 12 years after its date. It was held by a Full Bench of this Court by a majority of the Judges that the 12 years for enforcing the personal remedy against the mortgagor will run from the date of the sale of the mortgaged property--Aiyasamier v. Venkatachala Mudali ILR (1916) M 989. The same point was considered by the Calcutta High Court and it was held that the 12 years ran from the date of the decree--Jnanendra Nath Bose v. Khulna Loan Company, Ltd. 18 CWN 492. The Calcutta case went up to the Privy Council on appeal and the decision of the High Court was affirmed__Khulna Loan Company, Limited v. Jnattendra Nath Bose 32 CWN 145. In the present case the two referring Judges do not appear to agree as to whether the decision of the Privy Council has the effect of overruling the Full Bench ruling of this Court, Devadoss, J. holding that it does do so and Wallace, J. concluding that it does not do so. The reason given by Wallace, J. is that the report is not full enough to enable him to decide that the principle of the Madras Full Bench ruling has been reversed, but I must observe that, although the judgment of the Privy Council is very brief, it states that their Lordships do not see any reason to differ from the judgment of the High Court. As they use the word ' judgment' and not ' decree ' I think it is clear that they adopt the reasoning contained in the judgment of the Calcutta High Court, and consequently we must accept the principle there laid down. The decision is Based on the terms of Section 48 of the Code of Civil Procedure, and on the fact that the date of the decree being fixed by Order 20, Rule 7, there can be no other date for the decree. This was one of the main points relied upon by me in my dissenting judgment in Aiyasamier v. Venkatachala Mudali ILR (1916) M 989. where I held that a decree can only bear one date and that therefore under Section 48, 12 years must be calculated from that date. It is argued that the decision of the Privy Council on this point is considerably affected by a later judgment Rameshzvar Singh v. Homeshwar Singh (1920) 40 MLJ 1. where it was held that in the case of a decree not executable, except on the happening of a particular contingency, time will not begin to run until that contingency occurs. This decision has reference to Article 182 of the Limitation Act and not to Section 48 of the Code of Civil Procedure, but I think it can be distinguished on another ground, namely, that it deals with a decree which was wholly unexecutable on the date it was passed. In the present case, and in the case of mortgage decrees, the decree is undoubtedly executable, at least in part, on the date of the decree, and consequently so far as that part is concerned, the 12 years under Section 48 must undoubtedly run from the date of the decree itself. If the Legislature had intended that in such a case a further period of limitation should commence from the date when the second portion of the decree became executable, I think it would have said so, for there is a provision in Section 48, Clause 1 (b) that where a decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making payments or delivery in respect of which the applicant seeks to execute the decree is to be the date from which the 12 years is to run. Therefore in a mortgage decree and other decrees like the present it may well be open to the Court to pass a subsequent order declaring that the second portion of the decree had become executable, and directing execution to proceed, and such an order would come within the meaning of the subscquent order referred to in Section 48, Clause (1)(b). In the present case, the decree directs payment of the costs by the 1st defendant and that in case of failure to recover these costs from the 1st defendant, the same be recovered from the income of the trust property. It would, therefore, have been open to the plaintiff to ask the Court for a declaration that the costs could not be recovered from the 1st defendant and for an order directing payment out of the trust property, in which case undoubtedly a further period of limitation would begin under Section 48, Clause (1)(b). It is pointed out with some force by Devadoss, J. in his order of reference that it cannot be said that under the decree the plaintiff has 12 years to pursue his remedy against the 1st defendant and a further 12 years against the trust property. Section 48 provides an unqualified prohibition of the execution of the decree after 12 years from its date, unless certain specified circumstances exist, and consequently I do not think that it is open to Courts to extend that period, which after all is a very long period, unless the provisions of Section 48 are strictly complied with.

30. The other cases cited for and against the proposition do not materially further the determination of the question before me. In Ramana v. Baby ILR (1912) M 186 it was held that, in executing a decree which had left the question of mesne profits to be determined in execution, an application to determine the profits, made after 12 years from the date of the decree was barred under Section 48. In Venkata Perumal v. Prayag Dossjee (1915) 29 IC 556. a Bench of this Court followed the Calcutta ruling in Jnanendra Nath Bose v. Khulna Loan Company, Limited 18 CWN 492. in preference to the ruling in Narhar Raghunath v. Krishnaji Govind ILR (1912) B 368. The case in Bombay was not one of mortgage decree, but was determined on the principle that the 12 years period under Section 48 runs only from the date when the decree became in all its parts ripe for execution. This was the view taken by the majority of the Full Bench in Aiyasamier v. Fenkatachala Mudali ILR (1916) M 989. As I have pointed out above, this is not in accordance with the judgment of the Privy Council and appears to contemplate the proposition that a decree can bear two separate dates, the first date being the date of the decree on which it can be partially executed, and the second Hate being the date on which the right to apply for execution of the latter portion falls due. This latter principle is not at all supported by the ruling in Khulna Loan Company, Limited v. Jnanendra Nath Bose 22 CWN 145.

31 In view of all these circumstances I must answer the question referred to me in the affirmative.


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