1. The decree sought to be executed directed payment of maintenance annually on a specified date. It was passed in 1870 when Act XIV of 1859 was in force. There was an application for execution in 1873, which was within three years from date of the decree. The next application was not made till 1879. The Limitation Act then in force was No. XV of 1877. That application was dismissed as being time-barred. The present application was made in 1891. It has been held by the Courts below that the question of limitation is res judicata by the previous decisions and also that this application is barred by lapse of time. Therefore the questions are:
(1) Whether the question is res judicata, and (2) whether this application is time-barred.
2. As to the first question we are of opinion that the present claim is not res judicata, as the relief now claimed is distinct from that previously claimed. The two applications are for money payable for two distinct periods. The former decision is not sufficient to render the present claim res judicata; it can only affect the relief then claimed. The present application is clearly governed by Act XV of 1877, the law in force when it was made. It is an application falling under Article 179, Clause 6 of Schedule II of the present Act, which allows of execution for maintenance accruing due on specified dates within three years.
3. Our attention has been drawn to the decision of the Privy Council in Mungul Pershad Dichit v. Grija Kant Lahiri Chowdhry L.R. 8 IndAp 123 and to that of the Bombay High Court in Manjunath Badrabhat v. Venkatesh Govind Shanbhog I.L.R. 6 Bom. 54 But as pointed out in Jugmohun Mahto v. Luchmeshur Singh I.L.R. 10 Cal. 748 and Becharam Dutta v. Abdul Wahed I.L.R. 11 Cal. 55 the decision of the Privy Council proceeded solely on the language of Section 1 of Act IX of 1871, which was repealed by Act XV of 1877. This latter Act contains no language excluding from its operation proceedings in suits instituted prior to its coming into force.
2. We set aside the order of the Courts below, and remand the case for disposal according to law.
3. The respondent must pay appellant's costs in this Court and in the lower Appellate Court.