1. The facts of this appeal may be-briefly stated.
2. The plaintiff, the first defendant's father and two others carried on a partnership business at Zanzibar. Original Suit No. 143 of 1909 was filed in the Subordinate Court of Madura East for its dissolution. In that suit, the present plaintiff was the 5th plaintiff and the father of the present 1st defendant was the 1st defendant. A preliminary decree was passed on 27th October 1909 and a Commissioner was appointed. The temporary Subordinate Court of Ramnad to whose file the suit was then transferred confirmed the report of the Commissioner. Paragraph 6 of the order confirming the report runs as follows: 'It is, therefore, ordered that 1st defendant do forthwith pay into Court the sum of Rs. 2,611-6-3 being the amount found due to the partnership by him, that in default of such payment, the 5th plaintiff is appointed Receiver to realise and collect the said amount with power to bring and defend suits in his own name, etc., (see Ex. D.) The final decree (Ex. E) of the Subordinate Court was passed on 14th October 1911. It says 'that out of the amount collected by the plaintiff as Receiver in realising the only item of assets of Rs. 2,611-6 3 due from the 1st defendant, he (the 5th plaintiff) do take etc.' There was an appeal to the District Court and the High Court and the Subordinate Court's decree was finally confirmed by the High Court on 5th February 1917. Meanwhile there was an attempt to execute the decree of the Subordinate Court in Execution Petition No. 309 of 1914. The Subordinate Court of Ramnad held that the decree was unexecutable and that it contemplated that the 5th plaintiff as Receiver should sue 1st defendant to recover the amount (Ex. G, dated 26th October 1914). There was no appeal against this order and the order is now binding on all the parties. The result is that the decree must be construed, in the light of that order, to be a decree declaring or creating rights which are unenforceable in execution and can be enforced only by suit.
3. The present suit is presented on 4th February 1920 for recovering the said amount. The plaintiff obtained a decree and defendant appeals.
4. He contends that the suit is not maintainable and is barred by limitation. It is true, as he points out, that a claim to recover a sum of money due from one of the partners must form part of the enquiry in the action for winding up the partnership and no separate suit will lie after a suit for an account is barred by limitation. Gopala Chetty v. Vijayaraghavachariar A.I.R. (1922) (P.C.) 115 : (1922) M.W.M. 386: 43 M.L.J. 305: 20 A.L.J. 862.
5. But the respondent contends that the judgment (as construed by the order of 26th October 1914, Ex. G) creates fresh rights in the place of the older rights and this suit is an action on the judgment. This is obvious and, provided, there is no obstacle in India to a suit on a judgment, when there is no other remedy to enforce the right, the contention ought to prevail.
6. At common law, actions on judgment lie whether the remedy by execution is available or not. See William v. Jones (1845) 13 M. & W. 628 : 14 L.J. Ex. 145 Hutchinson v. Gillespie (1856) 11 Ex. 798and Marbella Iron Ore Co. v. Allen (1878) 47 L.J.C.P. 601 : 38 L.T. 815 and Black on Judgments. Vol. II, Section 958. This is admitted by the appellant. In India it is settled that no action lies on an executable judgment and the only remedy being execution the principle being embodied in Section 47, C.P.C., (Section 244 of the Code of 1882) An exception was at one time recognised by which suits were permitted to be brought on the High Court on judgments of a Court of Small Causes in order to obtain execution against immoveable property: Bhavanishankar Sherakram v. Pursadri Kalidas 6 Ind. Jur. 424. On the ground that, 'Where an action on the judgment will give a higher or better remedy, the case is different see Manchharam Kalliandas v. Bakshe Sahib Mir Mainuddin Khan 6 B.H.C.R. 231. The exception is now absolute (Section 94 of the Act XV of 1832.) But Couch, C.J., also says in the case last cited 'There are cases in which an action may be the only mode of enforcing a judgment or decree.' The present case is such a case, In Muhammad Gouse Cooroosee v. Mustan Ally 4 Mad. Jur. 127, Scotland, C.J., and Bittelston, J., recognising that such a suit would lie proceeded to discuss the question of limitation. The further remarks in Bhavanishankar Shevakram v. Pursadri Kalidas 6 Ind. Jur. 424 : 3 Ind. Dec. 652 were intended to apply only to executable judgments. The decision in Merwanji Noivroji v. Ashabai 4. Ind. Dec. 375 is also based on the policy of the C.P.C. and applies only to judgments capable of execution. So also are the remarks in Periasami Mudaliar v. Seetharamd Chettiar 14 M.L.J. 84: 'As against the judgment-debtor himself or against his legal representative it has long been held that under the Indian. Processual Law the remedy is only by, way of execution of the decree and that no suit could be brought upon the judgment.' The decision in Annoda Prasad Banerjee v. Nobo Kissore Roy 9 C.W.N. 952 shows a suit is maintainable on a judgment where no mode of execution (other than proceedings in contempt) is available. Sale, J,. says that that was the practice of the Court, referring to Attermoney Dossee v. Hurry Doss Dutt 4 S L.R. 192. The case in Kali Charan Nath v. Sukhadasundari Debi 30 Ind. Cas. 824 : 22 C.L.J. 272 those cited in it: Prosunno Chunder Bhuttacharjee v. Kristo Chytunno Pal 3 C.L.R. 154 and Ashi Bhusan Dasi v. Pelaram Mandal 21 Ind. Cas. 519: 18 C.W.N. 173 are not strictly relevant as they are cases where execution against the judgment-debtor on record was useless and it was sought to obtain on a judgment against another person substantially the same relief. The remarks in Ramanand v. Jai Ram 59 Ind. Cas. 632 : 18 A.L.J. 1001 apply only where there is another mode of enforcing the judgment.
7. In our opinion there is nothing in all the Indian authorities cited before-us against the maintainability of the suit. Such a case can occur only very rarely. Ordinarily the Indian Courts pass judgments which are to be enforced in execution and even when they create a new relation involving fresh rights and obligations, they provide for working out the rights in execution. Rarely do they create a new obligation without providing for its execution and indicating a suit as the only method of enforcing it.... But when they do, as in this case, the suit is maintainable.
8. We accordingly hold that the suit is maintainable. If so the only period of limitation that is applicable to it is Art 121 There was no old cause of action on which such a, suit would be maintained nor does it subsist if it ever existed. The judgments created a new obligation in lieu of the old. The suit is, therefore, within time.
9. The appeal fails and is dismissed with costs.