1. These appeals raise a question of limitation. The appellant in C. M. A. No. 463 of 1933 is the holder by assignment of the decree in O.S. No. 13 of 1923 on the file of the Sub-Court of Trichinopoly. That suit was filed by the Imperial Bank of India against two defendants Narayanan Chettiar and Vadivelam Pillai. A decree was passed in favour of the Bank by which the plaintiff was to proceed in the first instance against defendant 1 and then against both the defendants if necessary. The Imperial Bank of India as the decree-holder filed Execution Petition No. 126 of 1933: praying for the arrest of defendant 1. In a later Execution Petition No. 157 of 1923 filed on 13th August 1923, the Bank applied for attachment of the moveables of defendant 2 and an order for attachment was made but this petition was not pressed.
2. The present appellant is the sister's son of defendant 2 and he filed Execution Petition No. 201 of 1923 for recognition of the assignment to him of the decree and for the arrest of both defendants. This was contested by defendant 1 who alleged that the petitioner was only a benamidar for defendant 2. It was not objected to by defendant 2 and on 17th March 1924 the Court recognised the assignment and ordered the arrest of both the defendants. The petitioner was dismissed for non-payment of batta on 28th March 1924. On 29th July 1924, defendant 1, Narayan Chettiar, filed an insolvency petition in the District Court of Ramnad and was adjudicated insolvent shortly afterwards. During the pendency of these insolvency proceedings, the assignee decree-holder without the leave of the Insolvency Court, put in Execution Petition No. 236 of 1926 on 29th September 1926 in which he prayed for the arrest of defendant 1. After notice to defendant 1, an order was passed for his arrest on 29th November 1926, but no batta was paid and this was dismissed on 21st November 1926. Defendant 1 obtained an order of discharge in insolvency on 13th December 1930, and the Execution Petition with which this appeal is concerned was filed on 31st August 1932. In this petition the assignee decree-holder prays for execution against the assets of defendant 2, Vadivelam Pillai, now deceased in the hands of his legal representatives respondents 2 to 5 herein.
3. Since this petition was presented nearly six years after the order dated 21st December 1926, dismissing Execution Petition No. 236 of 1926, it was incumbent upon the petitioner to show that the application was not barred by limitation. He alleged several reasons why the petition was not barred. He claimed that on 5th September 1929, defendant 1 had sent him a letter acknowledging his debt. He alleged also that in the insolvency petition defendant 1 had acknowledged his liability under the decree. Therefore he said that the petition was not barred by limitation and he referred to Sections 19 and 20, Article 182, Lim Act. The objections on behalf of the respondents were based on several grounds. It was contended for the respondents that the insolvency proceedings could not save limitation. It was also alleged that the letter of 5th September 1929 was a forgery and that defendant 2's legal representatives could not be bound by it. It was also alleged that defendant 2 had never acknowledged such a debt at any time. It was also said that Sections 19 and 20, Lim. Act, had no application to that execution application and so it was barred by limitation.
4. A further ground of some importance alleged in the counter of the respondents was that the assignee decree-holder himself when he filed Execution Petition No. 236 of 1926 on 29th September 1926 put in a memorandum exonerating defendant 2 from liability under the decree. In pursuance of this it was alleged that the Court on 30th September 1926 had passed an order 'recorded as prayed for.' Therefore the respondents contended that the petitioner could not have any remedy against him. The assignee-decree-holder on becoming aware of the statements made by the respondents in the counter, alleged that the memorandum said to have been filed in Court on 29th September 1926 was a forgery, that he never exonerated defendant 2 from liability under the decree at all and he prayed that he should be allowed to execute the decree against defendant 2's legal representatives ignoring, or if necessary setting aside, the Court's order dated 30th September 1926. This was Execution Application No. 636 of 1932 which is the subject-matter of C. M. A. No. 484 of 1933. Upon the Execution Petition the learned Subordinate Judge has found that it was barred by limitation and on Execution Application No. 636 of 1932 he has found that the memorandum dated 29th September 1926 was a forgery and that the order dated 30th September 1926 should be set aside, and he has set aside that order accordingly and the respondents have preferred C. M. A. No.' 484 of 1933.
5. Mr. S. Srinivasa Ayyangar on behalf of the appellant practically abandoned all the contentions on the point of limitation which had been raised on behalf of the decree-holder before the learned Subordinate Judge. But he did attempt to contend that Execution Petition No. 236 of 1926 was a petition in accordance with law, although it had been filed after the institution of the insolvency proceedings against defendant 1 and without the leave of the insolvency Court. This is clearly contrary to Section 28(2), Provincial Insolvency Act; and the decision in Kotayya v. Venkata Ranga Rao : AIR1935Mad239 is quite clearly to the effect, that the execution petition cannot be filed without the leave of the insolvency Court against a person whose property has vested in the Official Receiver appointed by the insolvency Court. It is therefore clear that the Execution Petition No. 236 of 1926 cannot be said to be an application in accordance with law. If Execution Petition No. 236 of 1926 is disregarded the last order passed on an Execution Petition properly presented in accordance with law was the order passed on 28th March 1924 and Execution Petition No. 380 of 1932 which was not filed until 31st August 1932 is long barred by limitation, if Article 182 is applicable.
6. Mr. Srinivasa Ayyangar has therefore, as we have already said, practically abandoned all the contentions raised before the lower Court and he now seeks to contend that the proper article applicable is Article 181 and not Article 182, Lim. Act. For this purpose he relied upon the memorandum dated 29th September 1926 and the Court's order dated 30th September 1926. His case is that so long as the order dated 30th September 1926 was in force it was impossible for the decree-holder to execute the decree as against defendant 2 and therefore he is entitled to a period of three years from the date on which that obstacle to execution was removed. Actually the learned Subordinate Judge passed his order cancelling the order of 30th September 1926 only on 14th August 1933. In support of this contention Mr. Srinivasa Ayyangar relies upon the case of Rungiah Goundan & Co. v. Nanjappa Row (1903) 26 Mad 780 and also Ramireddi Venkata Appa Rao v. Lokkaji China Ayyanna (1907) 30 Mad 209. He refers also to the Privy Council case in Rameshvar Singh v. Homeshwar Singh 1921 40 MLJ 1 and the decision of a Bench of this Court in Mangamma Nayakuralu v. Ramadasappa Nayanimvaru : (1925)48MLJ563 Mr. Srinivasa Ayyangar also mentioned the case of Chhatar Singh v. Kamal Singh 1927 49 All 276 but we are unable to understand how that could have any application since it is not alleged by any party in this ease that the execution of the decree has at any time been stayed by an injunction or an order. The other four cases also, so far as we can see, do not support Mr. Srinivasa Ayyan-gar's contention.
7. The case reported in Rungiah Goundan & Co. v. Nanjappa Row (1903) 26 Mad 780 was a case in which on the date of the decree the decree was not executable at all. Therefore it was held that Article 179, corresponding to the present Article 182, was not applicable, but Article 178, now Article 181, was applicable, the period of limitation being three years from the date on which the decree-holder got a. right to execute the decree. The case in Ramireddi Venkata Appa Rao v. Lokkaji China Ayyanna (1907) 30 Mad 209 is somewhat similar. That was a case in which a sale held in execution of a mortgage-decree was set aside and the auction-purchaser was given an order for refund of the purchase-money. It was held there that after the sale when the decree-holder was in possession of the purchase-money he could not proceed with the execution of the decree but that when he was ordered to refund that purchase-money after the sale had been set aside, he got a right to execute the decree and could do so at any time within three years from the date of the order for refund of the purchase-money. The Privy Council case reported in Rameshvar Singh v. Homeshwar Singh 1921 40 MLJ 1 was another case in which on the date of the decree it was not capable of being enforced and their Lordships held that the period of limitation was three years under Article 181 from the date on which the decree became enforceable. The case reported in Mangamma Nayakuralu v. Ramadasappa Nayanimvaru : (1925)48MLJ563 is similar to the case in Ramireddi Venkata Appa Rao v. Lokkaji China Ayyanna (1907) 30 Mad 209. The principle of these cases is apparently that when the decree on the date on which it is passed cannot be executed, but becomes executable on a later date, the decree-holder has three years from the date on which it becomes executable, Article 181 being applied.
8. But it is important to notice that in these cases no question arose as to the laches or delay on the part of the decree-holder and no such question could arise in these cases. That this is important is indicated by their Lordships of the Privy Council in Rameshvar Singh v. Homeshwar Singh 1921 40 MLJ 1. their Lordships expressed themselves as follows:
They are of opinion that, in order to make the provision of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced. A decree so limited in its scope as that of 27th July 1906, under consideration, cannot, in their opinion, be regarded as being thus capable of execution. Under that decree Ekradeshvar was not made personally liable, nor did it extend to any portion of the estate of Janeshvar which was not in his hands. None of the estate came to his hands until after the decision of the Board in 1914. As to the ability of the appellant to have applied to enforce his claim when in, August 1908, the Subordinate Judge decided that Ekradeshvar was entitled to recover possession against the widow, it is enough to point out that the High Court at Calcutta promptly stayed execution of this decision, and later on reversed it. Neither can their Lordships accede to an argument put forward by counsel for the respondents that the decree against Ekradeshvar could be treated as a decree against the estate of Janeshvar, still less as one against that estate though not in the hands of Ekradeshvar. Their Lordships think that the appellant has not been shown to have been responsible for the delay which has taken place in giving effect to his title, which did not become complete until after the decision of this Board in 1914. They are of opinion that when the Limitation Act of 1908 prescribes three years from the date of a decree or order as the period within which it must be enforced, the language, read with its context, refers only, as they have already indicated, to an order or decree made in such a form as to render it capable in the circumstances of being enforced.
9. This point is emphasized by Wallace, J., in Mangamma Nayakuralu v. Ramadasappa Nayanimvaru : (1925)48MLJ563 . Referring to the Privy Council case in Rameshvar Singh v. Homeshwar Singh 1921 40 MLJ 1 Wallace, J., points out:
Part of the circumstances which their Lordships considered relevant in that case was whether or not the decree-holder was responsible for the delay which had taken place in giving effect to his title, that is, his right to execute.
10. In the case which we are now considering there was nothing in the decree itself which could prevent the decree-holder from applying for execution and for this reason the cases relied upon by Mr. S. Srinivas Ayyangar did not assist him. They are all cases where the decree-holder could not apply for execution at all. In the present case he could have applied for execution at any time after March 1924 and the delay from March 1924 to August 1932 was his own delay entirely. The delay was due to his own negligence or laches and not to any defect in the decree or to any circumstance connected with the decree which prevented him from putting in an application for execution. For this reason, it seems to us that the application put in August 1932 was very clearly barred by limitation and that it is not permissible for the decree-holder to rely upon the order of 30th September 1926, as giving him any fresh starting for limitation. We are clearly of opinion that Article 182 applies and that the decision of the learned Subordinate Judge is correct. C. M. A. No. 463 of 1933 must therefore be dismissed with costs.
11. With regard to C.M.A. No. 484 of 1933, the learned Advocate-General has discussed at some length the fact whether the memorandum Ex. H filed on 29th September 1926, was a forgery or was genuine. There are several points in favour of its genuineness. It was filed undoubtedly along with the execution petition and it appears to have been signed by the vakil who has signed the execution petition. Unfortunately, that vakil is now dead, but nobody has questioned the genuineness of his signature. The case of the decree-holder apparently is that the forger deceived the vakil. It is not easy, as the learned Advocate-General points out, to understand how this could have been done. It is also pointed out by the learned Advocate-General that in 1925, when a partition was made in the family of the assignee-decree-holder, this decree debt was not mentioned although the assignee-decree-holder says that in the partition it fell to his share. These are important points. But we are not prepared to say on a consideration of all the evidence that the finding of the learned Subordinate Judge on this point is certainly wrong. It was found by the learned Subordinate Judge in 1924 that the assignment of the decree to the present execution petitioner was not made benami for defendant 2 : vide Ex. B.
12. There has not been in this case any further attempt to prove that the assignment was benami. There are suspicious alterations in Ex. H and in the execution petition itself. And as the learned Subordinate Judge points out it is very difficult to understand why any such memorandum, as Ex. H should have been necessary at all. If the respondents' first witness is telling the truth, when he says that the vakil was asked to report to the Court that no relief was claimed against defendant 2, there is no reason whatever why this should not have been mentioned in the execution petition itself. If respondents' witness 1 is to be believed, the vakil when he prepared the execration petition praying for the arrest of both the defendants, was not acting in accordance with the decree-holder's instructions. On the whole therefore we are not satisfied, as we have said, that the learned Subordinate Judge's findings on this point are wrong. Therefore C.M.A. No. 484 of 1933 is also dismissed with costs.