1. The only question id this appeal is whether the decree-holer's application for execution is barred by limitation. The facts are briefly these: The respondents herein obtained a decree in O.S. No. 77 of 1903 on 28th September 1903. It is admitted that the application for execution in R.E.P. No. 323 of 191-5 on 11th March 1915 was within time. The Court ordered delivery of the properties to the decree-holders on 21st July 1915 Third persons objected to the delivery. The abjection was removed and item No. 3 was delivered to them on 27th March 1916 and the Court passed an order on that day the 3rd item was delivered to the petitioners and the petition was recorded.' A suit was filed by the obstructors and a temporary injunction was granted against the delivery of item No. 2. The suit was ultimately dismissed on 10th December 1916 and consequently the temporary injunction ceased to be in force from that date. The respondent filed an execution application on 3rd September 1921 and prayed for delivers of item No. 2 from the 10th defendant. Both the lower Courts dismissed the applicator as being barred by time and Jackson, held in Puttayya v. Puttanayya A.I.R. 1925 Mad. 152 that the application was within time. Hence this appeal by the 10th defendant.
2. The first contention is that the present application filed nearly six years after the application of 1915 is barred by limitation and it is urged that if this application is to be treated as an application to record the execution application of 1915 it should have been filed within three years of 18th December 1910 when the obstruction to execution was removed. The order of the District Munsif on the application of 1915 is 'the third item was delivered to the petitioners and the petition was recorded.' The question is whether the order amounts to a dismissal of the application. The present C.P.C. does not contemplate the passing of such an order. When an execution application is filed, if it is in order, it has to be disposed of on the merits; if it is barred by limitation or if the decree has been satisfied or if the applicant is not the decree-holder's assignee or his legal representative or if the decree-holder does not help the Court in executing the decree, or omits to do anything which the Court directs him to do, the application will have to be dismissed unless for proper reasons the Court adjourns the application. If the decree-holder is not able to do a thing allowed by the Court, the Court has to give him further time.
3. There is no provision of law by which the Executing Court could lodge the petition or record it, or strike it off for what is commonly called the statistical purposes. The Executing Court is bound to follow the procedure laid down in the Code and. it cannot dismiss the application for the reason that it is long pending. If there is obstruction to the execution of the decree, the Court ought to adjourn the petition till the removal of the obstruction. It does not matter how long the obstruction continues. If a temporary injunction is issued against a Court executing a decree, the Court should stay its hands till the injunction is dihsolved or till the suit in which it is granted is disposed of. If a permanent injunction is granted, against the execution of the decree, then the application for execution will have to be dismissed. If the Executing Court adjourns the petition from time to time, it will enable the decree holder to inform the Court as to the progress of the suit or proceeding in which the temporary injunction is granted and as soon as it is informed that the obstruction has been removed the Courts should proceed to dispose of the application according to law. It is to prevent dilatory proceedings and the long pending of execution applications that Order XXI, Rule 57 has been enacted. It lays upon the decree-holder the duty of helping the Court to execute the decree in his favour and if by reason of the decree holder's default the Court is unable to proceed further with the execution application, it shall either dismiss the application or for sufficient reasons adjourn the proceedings to a future date. Upon the dismissal of such an application the attachment shall cease. Under the old Code if the properties were once attached and the application for execution was subsequently dismissed, the attachment did not necessarily cease to have effect. If, instead of following the procedure laid down by the Code, the Executing Court orders that the petition be loged or recorded, or struck off, such an order is not one sanctioned by the Code and it only amounts, to this: petition is adjourned sine die. In this view the petition of 1915 is still on the record of the executing Court and the petition of 1921 is not a further application for execution, nor is it an application to revive that of 1915, for that is still on the file and no application is required to revive an application which is pending. It is an incorrect use of language to speak of reviving a petition which has not been dismissed. If the application has been improperly dismissed, an application would be necessary to revive it, viz., where the dismissal is not on the merits or for the default of the decree-holder but for the statistical purposes or on account of obstruction which would take time to remove. As the application of 1915 is still pending, the application of 1921 was only intended to call the attention of the executing Court to the fact that the execution application had to be proceeded with. The argument that if a Court lodges or records an execution application it should be regarded as pending and that there will be no time limit for asking the Court to proceed with it, obviously overlooks the fact that it was not the decree-holder that stood in the way of the execution being proceeded with but that the Court kept the matter pending without taking the necessary steps. When a Court keeps a matter pending, a party should not suffer by reason of the dilatoriness of the Court or by an action of the Court; not sanctioned by the law. The remedy to prevent long pendency of applications for execution is to adjourn the applications from time to time and to have them brought up for orders. If that is done, the Court would be in a position to know whether the execution could be proceeded with or not, and as soon as the obstruction is removed the Court would be able to proceed with the execution according to law.
4. Great reliance is placed by Mr. T.M. Krishnaswami Iyer on Suppa Reddiar v. Avudai Ammal 28 M. 50 (F.B.) where a Full Bench of this Court held that if an execution application is improperly dismissed, a subsequent application to revive or continue the application is governed by Article 178 of the old Limitation Act corresponding to Article 181 of the present Act. This case is distinguishable from the present, for here the application of 1915 was not dismissed. In Chalvadi Kotiah v. Poloori Alimelammah 3 M.L.T. 329 the Executing Court dismissed an execution application without notice to the parties on the ground that the execution had been stayed by the order of the District Court. Miller and Munro, JJ., held that the order of dismissal amounted to no more than a direction to the officers of the Court to remove the proceedings from the pending list, and observed at page 76 Page of 31 M.--[Ed.]:
that so long as proceedings initiated by the decree-holder are pending, his right to apply for their continuance accrues from day to day, i.e., on every day on which the Court does not suo moto continue them The right to apply will then not be barred till three years have elapsed after the proceedings have ceased to be pending.
5. In Subba Chariar v. Muthuveeram Pillai 14 Ind. Cas. 264 Benson and Abdur Rahim, JJ., follow the decision of Miller and Munro, JJ., in Chalvadi Kotiah v. Poloori Alimelammah 31 M.L.J. 71 : 3 M.L.T. 329. The principle of these cases is that if an execution application is pending, a subsequent application is not an application under Article 181 but an application asking the Court to continue the proceedings in a pending application. The decision in Ayisa Umma v. Puttiyapurayil Kunnachunkandi Abdulla A.I.R. 1924 Mad. 178 : 19 L.W. 613 to which one of us was a party is in point. It was held in that case that an order of dismissal of an execution petition for statistical purposes did not amount to a dismissal of the petition but that the petition should be considered as pending, I hold that the application of 1915 is still pending and, therefore, there is no bar to its being proceeded with.
6. In this connection I must express my strong disapproval of the practice of striking off or lodging an execution application for statistical purposes. The sooner it is stopped the better it would be for the parties as well as for the Courts executing decrees.
7. The next point urged is that the decree is not a joint decree and, therefore, the application of 1918 and of 1920 for execution against the 9th defendant do not save the bar of limitation, so far as the 10th defendant is concerned. In view of my decision on the first point it is unnecessary to deal with this point at length. The relevant portion of the decree is as follows:
'Plaintiffs do recover from defendants Nos. 9 and 10 possession of the plaint property with buildings thereon described below; plaintiffs do recover from the 9th defendant future rental, etc., and plaintiffs do recover from the 10th defendant future rental, etc.' The argument is that inasmuch as the decree directs the 9th and 10th defendants to pay mesne profits severally, it is not a joint decree but a several decree, and the application for execution against the 9th defendant cannot be treated as an application in a joint decree. Where a defendant is directed to pay a certain sum to plaintiff and another defendant is directed to pay a similar sum or a different sum to the plaintiff, the decree is not joint decree; but where a decree directs that A and B shall pay a certain sum to the plaintiff and further directs that A should pay another sum and that B should pay another sum and that A and B should bear their own costs, the decree is a joint decree against A and B. The decree is a joint decree if any one of the reliefs given in the decree is against the defendants jointly even though some other reliefs may be given against each defendant separately Explanation I to Article 182 of the Limitation Act is in these terms:
But where the decree or order has been passed...jointly against more persons than one, the application, if made against any one or more of them, or against his or their Representatives, shall take effect against them all.
8. This explanation should be liberally interpreted, and according to its terms the present decree is a joint decree. In Subramania Chettiar v. Alagappa Chettiar 30 M. 268 it was held that where a decree awards mesne profits against A and B jointly and costs jointly against A, B and C, an application to execute the decree, for mesne profits against A and B keeps alive the right to execute the decree for costs against C under part 2 of para. 2, Explanation 1 to Article 179 of Schedule II to the Limitation Act. This case was followed, by a Bench of the, Calcutta High. Court in Barada Kinkar Chowdhury v. Nabin Chandra Datta 14 C.W.N. 465. The facts of that case are very similar to those of the present. The decree in this case is a joint decree and the present application against the 10th defendant is not barred by limitation by reason of the application of 1918 and 1920. I find this point against the appellant.
9. In the result the Letters Patent appeal is dismissed with costs.
10. On the first point I agree that, on the authorities no other conclusion is possible, though the position does seem to me to be highly unsatisfactory if the decree-holder had presented an application directly after the close of the intervening litigation (as he should have been forced to do) and that application had been dismissed early in 1917, his present application would have been long out of time. Having done nothing to prosecute his first application for six years, he is, on the authorities, still in time.
11. Something should, of course, be done to put an end to this method of adjourning execution applications sine die. If they are held up by some other proceedings, they should be adjourned either for definite period of six months each, or till the date of the closing of the other proceedings.
12. On the 2nd point also I agree.