Ramaswami Gounder, J.
1. This appeal raises the question of limitation as regards E.P. No. 115 of 1955 in O.S. No. 49 of 1948 which was filed on 5-7-1954. The decree which was put into execution was a final decree passed in a partition suit allotting certain properties to plaintiffs 1 and 2 and other proper-ties to the defendants. The second plaintiff and defendant 1 and 3 are brothers and the first plaintiff is the wife of the second plaintiff. Under Clause (a) of the final decree, out of the sum of Rs. 4700 being the sale-proceeds of a house (which was sold as it was not convenient to effect a division by metes and bounds) after deducting poundage commission fee, etc, the balance of the amount was divided into two shares and the plaintiffs were allotted for their half share a sum of Rs. 2258-8-0. and defendants 1 and 2 the other moiety of the amount. It will also be seen that under Clauses (c), (d) and (e) of that decree, the defendants were made liable to pay the plaintiffs certain other amounts. That decree was dated 30-6-1950; and so. if nothing else had happened, the present E.P. filed on 5-7-1954 would be clearly barred by limitation. But the second plaintiff tiled M.P. No. 137 of 1951 on 2-7-1951, a cheque application for the purpose of drawing from court-deposit the said sum of Ra 2258-8-0 which was allotted to his half share and also the three amounts payable to the plaintiffs by defendants 1 and 2 under Clauses (c), (d) and (e) of the decree, making a total of Rs. 4341-5-6. That application was not in the form of a verified execution petition, but was a mere application supported by an affidavit sworn to by the second plaintiff. The order on that application shows that, so far as the amount covered by Clause (a) of the decree was concerned, the court had no objection to order payment; but the second plaintiff insisted on a cheque being issued for the entire amount of Rs. 4341-5-8 due to him under all the four Clauses (a), (c), (d) and (e), or not at all, and the court held that the plaintiff was not entitled to payment of the entire amount including the amounts covered by Clauses (c), (d) and (e) of the decree without resorting to execution and therefore dismissed the application in toto on 31-10-1951. That order was prehaps justified, because the second plaintiff was not straightway entitled to draw the monies covered by Clauses (c), (d) and (e) of the decree cut of the half share of the amount due to defendants l and 2 under Clause (a) of the decree without an attachment of that amount. After the dismissal of the cheque application on 31-10-1951, the present execution petition was filed, as stated, on 5-7-1954. If limitation is computed from the date of the order on the cheque application, then the present execution petition would be within time. The objection was taken before the executing court that the present execution petition was barred by limitation; and the learned Subordinate Judge overruled the objection and held that the cheque application was a step In aid of execution, and, that, as such the present execution petition was not barred by limitation, as against the order, the present appeal has been filed.
2. In this appeal, the learned counsel for the appellant contended that the amounts covered by the aforesaid clauses of the decree were not amounts realised in execution and as such it is not possible to treat the cheque application as a step in aid of execution. The learned counsel relied on the decision in Balaguruswami Naicken v. Guru-swami Naicken, 48 M LJ 5: AIR 1925 Mad 703 (A). That was a case where a mortgagee of the judgment debtor, as per the directions contained in the mortgage, deposited certain moneys in court on behalf of the judgment debtor, and an application for the payment of that amount was made and ordered. It was held that whore an amount of money is in court to the credit of a suit and such amount is not the proceeds of execution, an application for payment out cannot be said to be ah execution application pr a step in aid' of execution. I fail to see how that decision helps the present appellant. That was a case where some moneys unrelated to the decree or its execution were deposited by a mortgagee of the Judgment debtor and sought to be drawn out by the decree-holder. In the present case, the cheque application was filed for all the amounts covered by Clauses (a), (c), (d) and (e). So far as the money covered by Clause (a) is concerned, I fall to see why the cheque application should not be regarded as an execution petition.
3. The application together with the sworn affidavit can very well be taken to constitute the execution petition satisfying all the requirements of rules-11 to 14 of Order XXI, O. P. C. It must also be remembered that, under Clause (a) of the decree, instead of the house property being divided by nietns and bounds and a moiety allotted to each of the two sharers, what was done was that the property was sold and converted into a sum of money as it would not admit of a convenient division, and a moiety of the sale-proceeds was allotted to the share of plaintiffs I and 2, the other moiety to defendants 1 and 2. Therefore, under Clause (a) of that decree, the plaintiffs Were entitled to possession of that property.
In other words, when they seek to draw that amount from Court-deposit by means of a cheque application, it may well be interpreted as meaning that they were putting the decree into execution for the purpose of obtaining possession of that property which was allotted to them under the decree. It seems to me that there can be no legal impediment to treating the cheque application and the affidavit as constituting the execution petition for the purpose of takng possession of the property, namely, the money allotted to the plaintiffs for their share under Clause (a) of the decree. But the learned counsel contended that the order on the cheque application amounts to a finding that that application was not an execution petition, and so, on the authority of a Full Bench decision reported in Ghulamali v. Rajkumar, AIR 1931 Nag.. 154 (B) as that order has become final, it is not now open to' the decree-holder to rely on the cheque application as an execution petition.
But it will be seen from the order on the cheque application that, so far as the amount covered by Clause (a) of the decree was concerned, there was no such finding at all. In fact, the court had no objection to the payment, of that amount. It was only in regard to the amounts covered by Clauses (c), (d) and (e) that court pointed out that those moneys could not be ordered to be paid without resorting to execution. It therefore follows that so far as the amount covered by Clause (a) of the decree is concerned, there is really no objection to treating the cheque application together with the affidavit as an execution petition satisfying all the requirements of Rules 11 to 14 of Order XXI. In that view, the order dismissing the cheque application was a final order on a prior execution petition, and it will save limitation so far as the present execution petition is concerned.
4. Even as regards the amounts covered by Clauses (c), (d) and (e) the cheque application may well be regarded as an. execution petition. So far as these amounts were concerned, the order dismissing the application was perhaps right, because those amounts could not straightway be paid to the decree-holder out if the moneys lying to the credit of the defendants under Clause (a) of the decree, and there should have been an attachment of that amount before the amounts mentioned in Clauses (c), (d) and (e) could be paid out to the plaintiffs. But the absence: of a specific prayer for attachment need not prevent a court from taking the view that the previous application for cheque may be regarded as an execution petition.
The prayer for attachment is implicit in the prayer for payment. After all, the property to be attached was in the form of money in court-deposit. There was no need for a prayer for the sale of the property. When, therefore, the decree-holder applied for payment of that amount, it means by implication that he requested the court to take all the necessary steps to enable payment of that amount, that is to say, to attach that amount and pay it to him. The learned counsel was not able to cite any decision in support ot his contention that if there is no prayer for attachment, then the cheque application cannot be regarded as an execution petition.
Here again, the learned counsel relied on the Full Bench decision of the Nagpur High Court that there was already a finding on the cheque application that it was not an execution petition so far as the amounts covered by Clauses (c), (d) and (e) were concerned. It is true that the court observed that those 'amounts' were not payable to the plaintiffs without resorting to execution. The question whether the cheque application could be regarded as an execution petition or not did not certainly arise for consideration at that stage. That order only means that the amount, was not payable without & prayer for attachment.
It can by no means be taken as a fnding that it was not an execution petition filed in accordance with law. In this connection, I may refer to a Bench decision of our High Court reported In Thangi Shettithi v. Duja Shetti, 35 MLJ 575 :AIR 1919 Mad 929 (C). In that case, in execution of a revised decree in a suit for sale on a mortgage, the plaintiff applied for and obtained an order after notice directing the payment towards the partial satisfaction of the decree amount, of a sum of Rs. 500/- deposited in court by one of the defendants in pursuance of an order directing him to do so as a condition of the original ex parte decree being set aside; and the said sum of Rs. 500 was paid out to the plaintiff on her application.
It was held that as the money was deposited only as a security, an order of court was necessary to make it available for payment towards the decree amount and an application for payment of the money was necessary, and 8s such, the application was one in execution of the decree itself. It is important to note that, in that case, there was no prayer for attachment of the amount. This decision is clearly In favour of the view which I am taking.
5. The order appealed against was right, and this appeal is dismissed with costs.