1. In E.P. No. 12 of 1928 the appellant, the mortgagee decree-holder in O.S. No. 29 of 1918, Masulipatam, applied to. sell the mortgage security. He cited a previous application, dated 2nd October, 1922, and claimed to be in time because 'the plaintiff was restrained by an injunction from executing the mortgage decree, and the injunction was dissolved only on 16th August, 1927'.
2. The Count accordingly ordered sale on 5th April, 1928, but stayed it upon the respondent judgment-debtor's objection that the execution application was time barred, and finally by its order, dated 14th August, 1928, dismissed the application as barred by limitation. Hence the appeals.
3. We do not find that the Court had debarred itself from going into the question of limitation by ordering sale. If it had been misled by the appellant into thinking that there was no question of limitation it did right to go into the matter before the execution was concluded. This disposes of C. M. A. No. 52.
4. The appellant no longer maintains that there was an injunction as originally stated. But site argues that there was a decree, which in its effect was tantamount to an injunction, and which therefore attracted the provision of Section 15, Indian Limitation Act. -The exact words of that section applicable to this case are: 'In computing the period of limitation prescribed for any application for the execution of a decree, the execution of which has been stayed by injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shrill be excluded '.
5. Eight months after the appellant obtained her decree certain 'worshippers impleading both the mortgagor and the mortgagee got it declared that the security of the mortgage was a religious endowment and not the property of the mortgagor in the. decree in O.S. No. 14 of 1920, Sub-Judge, Masulipatam, and it is this decree which the appellant asks us to treat as an order staying the execution of her prior decree, until it was set aside on appeal by the High Court on 16th August, 1927.
6. The learned District Judge has found that the petitioner was not restrained or prevented from executing her decree, and if she had applied for execution the Court could not have refused to execute.
7. In our opinion this is correct. Suppose in a similar case the mortgagor was possessed of much, property besides the mortgaged property. The decree-holder could put in his application for execution, sell the property with the blot on the title for what it was worth, or have it recorded that the property was legally extinct [see Chand Mall Babu v. Ban Behari Bose I.L.R. (1923) 50 Cal. 718 and then apply for a personal decree; and to say that in these circumstances execution has been stayed, is to wrest the expression entirely away from its ordinary meaning.
8. To maintain her argument the appellant must read stayed as inconvenienced, and it remains to see whether the case-law supports that interpretation. There appears to be no Madras case directly in point. The two Bombay rulings in Somshikhar Swami Guru v. Shivappa Mallappa Hosmani (1923) 76 I.C. 557 and Ram Bharosay v. Sohan Lal (1924) 82 I.C. 1 run on all fours with the present case and negative the appellant's view. In regard to the institution of suits, not the execution of decrees, it is held in Satyanarayana Brahmam v. Seethayya I.L.R. (1926) 50 Mad. 417 : 52 M.L.J. 396 that no equitable grounds for the suspension of a cause of action can be added to the provisions of the Indian Limitation Act and a decree cancelling a promissory note as fraudulent is no stay of a suit upon the note. This judgment does not seem to have been brought to the notice of the Bench in Lakshminarayana v. Lakshmipathi : (1927)53MLJ520 and there the ruling is to the exact contrary--that the decision in the collateral suit was in substance one which prevented the filing of a suit upon the note. Two cases are cited by that Bench in support of its view: Pandey Satdeo Narayan v. Srimati Radhey Kura (1919) 5 Pat. L.J. 39 and Satish Mohim Debya v. Pabna Bank, Ltd. (1918) 47 I.C. 907. In the Patna case the decree-holder was ordered to furnish security for half a lakh before executing his decree, and that order is interpreted as one staying the execution; there is no question of collateral decrees.
9. In Satish Mohim Debya v. Pabna Bank, Ltd. (1918) 47 I.C. 907 it is also found that there is an order amounting to a stay. 'Execution was clearly stayed by the order of 27th May--the Judge struck off the execution case for the present.' Again, there is no question of a collateral decree, so Lakshminarayana v. Lakshmipathi : (1927)53MLJ520 seems to stand alone, and of the two contradictory judgments we prefer Satyanarayana Brahmam v. Seethayya I.L.R. (1926) 50 Mad. 417 : 52 M.L.J. 396 as correctly stating the law.
10. In Muthu Korakkar Chetty v. Madar Animal I.L.R. (1919) 43 Mad. 185 : 38 M.L.J. 1 the question was referred to a Full Bench whether the cause of action for delivery to which Article 180, Indian Limitation Act, applies is suspended during the pendency of proceedings for the setting aside the sale, and this question attracted a general discussion of limitation covering a wide range. On p. 208 Sadasiva Aiyar, J., found that the sale was not finally approved till the proceedings to set it aside for fraud had terminated, a case very much on all fours with Baijnath Sahai v. Ramgut Singh when a revenue sale was held to be finally confirmed after various proceedings. He then enunciates a principle underlying this ruling 'that whenever proceedings are being conducted between the parties bona fide in order to have their mutual rights finally settled, the cause of action for an application, the relief claimable wherein follows naturally on the result of such proceedings, should be held to arise only on the date when those proceedings finally settle such rights.'
11. It can hardly be said that Baijnath Sahai v. Ramgut Singh I.L.R. (1896) 23 IndAp 45 : I.L.R. 23 Cal. 775 (P.C), and the other case cited, Mussumat Ranee Sumo Moyee v. Shooshee Mokhee Burmonia (1868) 12 M.I.A. 244, lay down any such general proposition. These cases decide as a matter of fact that in cartain circumstances a cause of action arose upon a certain date, and it would be very dangerous to proceed as though their underlying principle contained a general proposition of statutory force.
12. The next case which is cited, Nrityamoni Dassi v. Lakhan Chandra Sen I.L.R. (1916) 43 Cal. 660 : 30 M.L.J. 529 (P.C), requires to be read with care. As stated in the opening sentence it is a general concurrence with the judgment under appeal, reported in Lakhan Chunder Sen v. Madhusudan Sen I.L.R. (1907) 35 Cal. 209, a case in which Mussumat Ranee Sumo Moyee v. Shooshee Mokhee Burmonia (1868) 12 M.I.A. 244 and Prannath Roy Chowdry v. Rookea Begum (1859) 7 M.I.A. 323 have been followed. In the latter case it is found on p. 357 that it would be an inconsistent course in the Courts to hold that the pendency of a litigation furnished no 'good and sufficient cause' for the appellants not proceeding with his own claim. The words in inverted commas are a quotation from an exception to certain Bengal Regulations referred to on p. 253 of this same Vol. 7. 'But certain exceptions are introduced into those' Regulations, amongst others, that the limitation 'of twelve years is not to apply where the party has been precluded by good and sufficient cause from bringing his suit within that period'. It cannot be said that the series of cases ranging from Prannath Roy Chowdry v. Rookea Begum (1859) 7 M.I.A. 323 to Nrityamoni Dassi v. Lakhan Chandra Sen I.L.R. (1907) 35 Cal. 209 have superimposed upon the Indian Limitation Act some provision which finds no place among its sections. On p. 209 in Muthu Korakkai Chetty v. Madar Ammal I.L.R. (1919) 43 Mad. 185 : 38 M.L.J. 1 Mr. Justice Sadasiva Aiyar re-states the principle in these terms:
A person is not bound to bring an unnecessary suit or to make futile and Unnecessary applications during the course of other litigation proceedings for the settlement of the same rights.
13. But that seems rather to beg the question. If the application is one, which must be made in order to save the bar of limitation it is neither futile nor unnecessary. As observed by Mr. Justice Seshagiri Aiyar in the same case on p. 211, the Judicial Committee have held that exemptions not covered by the sections of the Indian Limitation Act should not be imported by Courts to relieve a party from the bar of limitation, and this principle is not overlooked in the six Privy Council cases which he cites including Nrityamoni Dassi v. Lakhan Chandra Sen I.L.R. (1916) 43 Cal. 660 : 30 M.L.J. 529 (P.C.). The Officiating Chief Justice speaks to the same 'effect on p. 200. 'It is hardly to be inferred from such observations that the Privy Council intended to lay down any rule other than those mentioned in various sections of the Indian Limitation Act.' In Satyanarayana Brahmam v. Seethayya I.L.R. (1926) 50 Mad. 417: 52 M.L.J. 396 it is also held that whatever view be taken of Nrityamoni Dassi v. Lakhan Chandra Sen I.L.R. (1916) 43 Cal. 660 : 30 M.L.J. 529 (P.C.) no equitable grounds for suspension of a cause of action can be added to the provisions of the Limitation Act. Ammathayi Animal v. Sivarama Pillai (1924) 48 M.L.J. 74 is to the same effect.
14. A recent Privy Council case Nagendra Nath Dey v. Suresh Chandra Dey lays down that though in theory some rule in regard to collateral litigation may be intelligible, when, however, there is no such rule in the Act, the only practical course is to interpret and follow the Act's provisions. We agree and hold that if the appellant cannot bring herself within the exemptions provided for in the Act, she cannot escape the bar of limitation by pleading in equity an implied order or a collateral litigation which would render her proceedings futile.
15. It remains to consider whether the Execution Petition which was dismissed on 16th January, 1923, can be treated as revived by the present Execution Petition so that no question of limitation need arise.
16. There is no doubt that the execution petition was dismissed because batta was not paid, and it is difficult to see how a petition dismissed for that reason can possibly be revived. , I have had the advantage of reading the judgment of my learned brother which is about to be delivered on this point, and entirely agree with his conclusion, and the statement of the case-law upon which it is founded.
17. The appeals therefore must be dismissed with costs.
Sundaram Chetty, J.
18. The appellant in these appeals filed O.S. No. 29 of 1918 in the district Court, Masulipatam, on a Mortgage bond and obtained a preliminary decree for sale of the mortgaged properties on 4th November, 1919. The final decree in that suit was passed on 27th March, 1922. She filed E.P. No. 57 of 1922 on 2nd October, 1922, praying for the sale of the mortgaged properties for the realisation of the decree amount. That petition was dismissed on 16th January, 1923. In 1919, one Mahomed Yusuff and another filed a suit in the District Court, of Kistna at Masulipatam which was subsequently transferred to the Court of the Subordinate Judge, Masulipatam and numbered as O.S. No. 14 of 1920, in which the present appellant and also the mortgagors who executed the mortgage deed on which the decree in O.S. No. 29 of 1918 was passed were also impleaded as defendants. The plaintiffs therein contended that the mortgaged properties belonged to a mosque which was a public religious endowment and were inalienable and prayed for a declaration that the mortgage deed was invalid and unenforceable. That suit was decreed on 15th January, 1923 and the declaration sought for was accordingly given. The present appellant who was impleaded as the 2nd defendant in that suit preferred an appeal to the High Court against that decision (A.S. No. 349 of 1923). That appeal was allowed and the plaintiffs' suit brought on behalf of the mosque was dismissed on 16th August,. 1927. Subsequently, the present application for the execution of the decree in O.S. No. 29 of 1918 was filed by the decree-holder on 23rd September, 1927. The contention of the judgment-debtors is that this application for execution is barred by limitation. The learned District Judge upheld this objection and dismissed the execution petition.
19. The appellant puts forward several grounds in support of the contention that the present execution application should be held to be not barred by limitation. I propose to deal with one ' pi those contentions and, that is, that the present E.P. No. 12 of 1928, filed soon after the High Court decision, must be deemed to be one for the revival of the former E.P. No. 57 of 1922, which was dismissed on 16th January, 1923. In order to apply the principles of law relating to the doctrine of revival, it would be well to ascertain what the exact facts in this case are. In E.P. No. 57 of 1922 the prayer was for the sale of the mortgaged properties. On 17th November, 1922, notice of sale to the judgment-debtors was ordered fixing the hearing date as 12th December. On the latter date, the judgment-debtors were absent and the notices were found to have been affixed Finding that the service was not sufficient, the Court ordered fresh sale notice to be taken out by the decree-holder and fixed the hearing date as 16th January, 1923. When the petition was taken up for disposal on that date it was found that no batta was paid for fresh sale notice as ordered by the Court. On the express ground that no batta was put in, the petition was dismissed on that day without costs. Thus ended E.P. No. 57 of 1922. It is true that on 15th January, 1923, the judgment in O.S. No. 14 of 1920 was pronounced by the Subordinate Judge, declaring that the mortgage in question was invalid and not binding on the trust. It may be contended with some show of reason, that even in the absence of an injunction restraining the sale of the properties in execution of the mortgage decree in O.S. No. 29 of 1918, the declaration of the invalidity of that mortgage would be an obstacle to pursue the execution of the mortgage decree by seeking to sell the mortgaged properties. I am not however dealing with that point. What is stated in ground No. 13 in the memorandum of appeal in C. M. A. No. 51 of 1929 is, that E.P. No. 57 of 1922 was dismissed on 16th January, 1923, in consequence of the judgment in O.S. No. 14 of 1920, dated 15th January, 1923. If the statement is correct, it may very well be contended that the present execution application may be deemed to be one for the revival of the former one which was wrongly dismissed by reason of an obstacle which was subsequently removed and for no fault or neglect of the decree-holder. But as I have set forth above, the dismissal of E.P. No. 57 of 1922, as would appear from the orders thereon, was due to the non-payment of batta for fresh sale notice as ordered by the Court. There is nothing to show that by reason of the adverse decision in O.S. No. 14 of 1920 the executing Court dismissed that petition on the ground that the properties could not be put up for. sale. In the absence of any sort of proof in support of the assertion made in ground No. 13 of the appeal memo and in the face of the express order of the Court passed on 16th January, 1923, the only possible conclusion in this case is that that petition was dismissed on that date on account of the failure of the decree-holder to pay batta for fresh sale notice as ordered by the Court.
20. Though Order 9 and Order 17, Civil Procedure Code, do not apply to execution proceedings, still the Court has, doubtless, inherent power to dismiss an application for execution when the applicant makes default in the payment of batta which is necessary, to put the Court in a position to proceed with the application. That being so, the dismissal of the E.P. on 16th January, 1923, on account of the default of the decree-holder due to her own laches was a proper and final disposal of that petition. The principle of law deducible from a long course of decisions seems to be, that an application for execution which has been finally and properly dismissed cannot be revived. This principle has been clearly stated in the decision in Suryanarayana Pandarathar v. Gurunada Pillai I.L.R. (1897) 21 Mad. 257 : 8 M.L.J. 25. In that case, the application filed in September, 1892, was found to have been properly dismissed, as it was filed in contravention of the previous order of the Court. The fresh application for execution which was filed in October, 1895, could not be treated as a renewal of the application filed in September, 1892, as the latter application was finally and properly dismissed. The same view has been expressed by Ramesam, J. in the decision reported in Lahimiya v. Mazur Hannisa (1926) 95 I.C. 718 in the following passage:
Not unless there was a suspension without any default on her part can the principle of revival of a former execution petition be utilised in favour of the appellant.
21. The learned Advocate for the appellant referred us to several decisions in support of his contention, but none of those decisions has proceeded on any ground inconsistent with the principle stated above and all those decisions are clearly distinguishable and cannot help the appellant in this case. Where an execution petition can be deemed to have been not finally disposed of and can be treated as still pending in the eye of law, the subsequent execution application may be treated as one , for the continuance of the former one. Where the former execution application was dismissed finally, but for some reason (not due to any default or neglect on the part of the applicant) which subsequently turned out to be untenable, the later execution application would be deemed to be one for a revival of the former one. For all intents and purposes, there is not much difference between revival and continuation of the former application. The same principle however applies in both cases. In the decision in Sasivarna Tevar v. Arulanandam Pillai I.L.R. (1897) 21 Mad. 261 : 8 M.L.J. 18 it was held that the District Munsif had no legal authority to dismiss the execution petition simply because execution was stayed by the Sub-Court. The words 'struck off' were taken to be not a dismissal. In. this view, the execution petition was held to be pending in the eye of law and therefore the later application was treated as one to continue the pending proceedings. The Full Bench decision in Suppa Reddiar v. Avudai Ammal I.L.R. (1904) 28 Mad. 50 : 14 M.L.J. 401 is based on the same principle. In that case, the execution petition, dated 15th June, 1898 and filed by the assignee-decree-holder was dismissed on the ground that the assignment of the decree was for the judgment-debtor's benefit, and consequently the petitioner was not entitled to execute the decree. But in a suit filed by the assignee-decree-holder, it was declared that the assignment of the decree 'was not for the benefit of the judgment-debtor. The subsequent execution petition filed by the assignee-decree-holder on 24th November, 1902, was therefore treated as one to revive or continue the former execution petition which was wrongly dismissed by the Court. In the case reported in Chalavadi Kotiah v. Poloori Alimelammah I.L.R. (1907) 31 Mad. 71 : 18 M.L.J. 46 the dismissal of the execution petition, because execution was ordered to be stayed by another Court, was held to be a wrong order. It was also found that the dismissal of the execution petition was without notice to the parties. That being so, the execution petition was treated as one pending in, the eye of law and therefore the later execution petition was treated as one for the continuance of the pending proceedings. The principle relating to revival as stated in this case was approved in the decision in Manyam Surayya v. Sunkavilli Venkataratnam I.L.R. (1923) 47 Mad. 176 : 45 M.L.J. 822. That decision does not in any way help the appellant's contention, that even if the former execution petition was rightly dismissed, the fact that there was an obstacle to execution by reason of another decision would itself entitle the applicant to have the later execution petition filed beyond three years treated as one in revival of the former application. It seems to me clear that there should have been no final disposal or there should have been, a wrong dismissal on account of some obstacle which then existed but which was subsequently removed, in order to entitle the applicant to have the later application treated as one in continuation of or to revive the former one.
22. In Paghunandun Pershad v. Bhugoo Lall I.L.R. (1889) 17 Cal. 268 it was held that the second application could not be deemed to be one for the -revival of the first. The interruption to the execution proceedings must have been due to an intermediate order which was afterwards set aside or the execution proceedings must have been rendered infructuous by some such obstacle and the interruption to the execution should not have been occasioned by any fault or laches of the applicant. This was held to be the test for applying the principle of revival. To the same effect is the decision in Raghunath Sahay Singh v. Lalji Singh I.L.R. (1895) 23 Cal. 397. The view taken in the decision in Narayan Govind Manik v. Sono Sadashiv I.L.R. (1899) 24 Bom. 345 is virtually the same. As the original application of January, 1888, was found to have been wrongly dismissed on the ground that a suit for the removal of the obstruction was pending, the later execution application was taken to be one to revive the previous one which had been suspended pending litigation. Much reliance was placed on behalf of the appellant on the Privy Council decision in Qamar-ud-din Ahmad v. Jawahir Lal . In that case, on the execution application filed in August, 1888, execution was allowed to proceed by an order, dated 18th December. On 29th November, 1889, it was ordered that the case should be struck off the file and the record transferred to the Court of the Collector for execution. On the 23rd December it was ordered that the record be not sent to the Collector's Court as the decree-holder had not made the deposit on account of the transfer. Against the order of 18th December, 1888, allowing execution to proceed, an appeal was preferred to the High Court which reversed that order and in a, further appeal to the Privy Council the order allowing execution was restored on 12th December, 1894. Then an application for execution was made on 23rd November, 1897, which was held to be one to revive a pending execution petition suspended by no act or default of the decree-holder. Their Lordships have clearly held that order, dated 23rd December, 1889, was in no sense a final order. It was also held that the; interruption to or suspension of execution was not due to any act or default of the decree-holder. In such circumstances the decree-holder was found to be entitled to come again to the Court and ask for the revival or continuance of the former petition.
23. None of the decisions referred to above can be utilised to justify the appellant's contention pressed for acceptance in this particular case. The present case according to the facts established is not one in which the bar of limitation could be got over by invoking the principles governing revival. As was held in Suryanarayana Pandarathar v. Gurunada Pillai I.L.R. (1897) 21 Mad. 257 : 8 M.L.J. 25, the former E.P. No. 57 of 1922 having been finally and properly dismissed it could not be revived by the present E.P. No. 12 of 1928. This being a fresh application for execution, it must be deemed to be barred by limitation under Article 182 of the Limitation Act, as it was filed more than three years from the date of the final order passed on the former application, namely, 16th January, 1923.
24. As regards the other points involved in these appeals, I am in entire agreement with the conclusions arrived at by my learned brother in his judgment. I accordingly agree that these appeals should be dismissed with costs.
25. I have had the advantage of reading the judgments of my learned brothers and I am in complete agreement with the views that they have expressed on both the points raised in this appeal. I would only add this: Section 15 of the Limitation Act is explicit in its terms. In order to call its provisions in aid it must be shown that a suit or application for the execution of a decree has been stayed by an injunction or order. The authorities bearing on the question have been fully discussed at the Bar during the arguments in this appeal After considering them I do not think that there is any real basis for the view that equitable considerations can be introduced into the very clear provisions of the section. The injunction or order must be express in its terms and I find no room for the suggestion that an application can be stayed by implication. The trend of the Privy Council decisions seems to be to this effect and in the recent case of Nagendra Nath Dey v. Suresh Chandra Dey their Lordships explicitly lay down that 'in construing questions of limitation equitable considerations are out of place '.
26. I am therefore constrained to join in expressing respectful dissent if any of the Indian cases cited lend colour to the doc-trine that although an injunction or order does not in its terms effect a stay nevertheless it can be said to do so 'equitably' or 'by implication'. I accordingly agree with the order proposed.