1. The sole question upon this appeal is whether execution of an ex-parte decree passed by this Court on the original side on 18th Mareh 1912 is barred by Article 183, Schedule 1, Lira. Act, 1908. The period of limitation is 12 years and when the decree has been 'revived' the 12 years have to be computed from the date of revivor. The present application for execution was made on 3rd September 1926 and it was not contended by the learned Advocate-General before us, though it is suggested in the memorandum of appeal; that the application of that date can be regarded as a mere renewal of an earlier application. Taking this as the relevant date the appellant contends that the decree was revived by an order dated 29th May 1924 so far as the original judgment-debtor, Subramania Chetty, is concerned.
2. The relevant fact3 when disentangled are really there. On 21st March 1923 an application for execution was made by the present appellant as assignee of the decree. Whether this was validly or invalidly served upon Subrauania does not matter for, on 21st May 1923, he appeared through his solioitor and obtained adjournments. It appears that he did not file any affidavit or give any written statement of any objections such as are contemplated by Rule 16, Order 21, but that the solicitor obtained the adjournments on mentioning that he wanted to move to set aside the decree and have the execution stayed. On 13th June 1923 he obtained a rule on motion calling upon the appellant to show cause why the decree should not be set aside and execution stayed. On 17th August 1923 it wa3 ordered that an issue be tried as to whether Subramania was a partner in the defendant firm and that all further proceedings in execution of the decree should be stayed until the trial of the said issue.
3. Apparently the validity of the decree depended on this issue which was determined against him by an order of Thornhill, J., dated 29th May 1924. Twelve years had meanwhile expired, on 17th March 1924, since the date of the decree, and it is this order of 29th May 1921 that it is said to operate as a 'revivor.' The terms of the order merely declare that Subramania is a partner of the firm in question and that his application to set aside the decree is dismissed. As the interim stay granted on 17th August was expressed to be 'until the trial of the said issue' it came to an end of itself and without further order.
4. What followed has no bearing upon the present question, but to make the matter clear it may be mentioned that on 9th April 1925 the appellant applied for renewal of his application of 21st March 1923 and fresh notices were ordered. The judgment-debtors were not properly served and did not appear. In their absence the appellant on 18th May 1925 obtained an order giving him leave to execute the decree, which order was afterwards set aside.
5. It is contended for the appellant that the order of 29th May 1924 was by implication a determination that the decree was still capable of execution and that the decree-holder was entitled to enforce it. Reliance is placed on Kamini Devi v. Aghore Nath Mukerjee (1910) 11 C.L.J. 91. That was a case of an application to execute a decree. The judgment-debtors before the Court were obliged to put forward all their objections. They put forward and pressed one only - a plea of limitation. This plea was overruled but no actual order, e.g., of attachment was made. It was held that the Court had impliedly decided that the decree-holder was entitled to have execution.
6. The facts of the present case are different in an essential point. There is no evidence that Subramania had ever stated his objections if any under Rule 16, Order 21. He took a prior point and obtained adjournments to litigate it - not under the summons or in chambers but by a rule and issue tried in Court. It is not shown that he at any time disclaimed all other defences to the summons or that he was required to state his defences before being given an adjournment. The learned Judge who tried the issue was in no way hearing the summons He was under no obligation to know - and in all probability neither knew nor cared - what answer to the summons Subramania might have. He had to decide whether the decree had ever been a good decree. If it was then the Judge in chambers could proceed to decide the execution matter in the ordinary way. It is said that in the circumstances of this case it is clear that Subramania could have no defence of payment and no defence of limitation, and that the order of 29th May 1924 really concluded the matter and was therefore a decision by implication that the appellant was entitled to enforce the decree. This was the main argument of the learned Advocate-General, but I think it is an illegitimate extension of the principle applied in Kamini Devi's case. The decision in that case proceeded on the objections which the judgment-debtor in fact took in the execution case, and on the fact that the question before the Court was whether the decree could be executed. The judgment-debtor took only one defence and that was overruled. The decision as to revivor did not proceed upon a consideration of the defences which the judgment-debtor had in the sense of good defences. The judgment-debtor had been called upon for his whole defence and ha had failed to establish any. I see no proof that this was what happened in the present case. We are dealing with an order made by Thornhill, J., when the execution matter was not before him for decision. Its implication cannot for this purpose be carried, beyond what was involved in the issue framed on 17th August 1923 and the rule of 13th June 1923. It seems clear enough that if the application of 21st March 1983 had been properly restored Subramania would have had the right to contest it by stating what defences, if any, he had. All that had been found against him was that the decree when passed was a good decree. One defence was gone - a defence that he could not take upon the summons. Any that he could take upon the summons were open to him.
7. Whether it be true or not that there can be no revivor without an order for execution, as the learned Judge has said, I think that no revivor has been shown in this case. I think the appeal should be dismissed with costs.
8. This is an appeal from a judgment of my learned brother C.C. Ghose, J., dated 14th April 1927, dismissing an application of the appellant for execution on the ground that the said application is barred by the statute of limitation.
9. The facts which are material for the purposes of the appeal may be briefly stated as follows:
On 18th March 1912 a decree was passed by the High Court in its original jurisdiction for a certain sum of money in favour of Sugan Chand Daga and Champalal Binani (plaintiffs) and against a firm whose proprietors were Kanappa Chetty, Subramania Chetty and Ramanandan Chetty (defendants). The said three Chetties were members of a joint Mitakshara family and were carrying on business in co-partnership under the name and style of Shuna Vena Kannappa Chetty at No. 67, Canning Street, in the town of Calcutta. No appeal was preferred from the said decree nor was any adjustment of the matter in dispute made subsequent to the said decree nor was any writ issued before or after adjustment. Sugan Chand Daga died after decree and Kedar Nath Daga, the only son, heir and legal representative of the said Sugan Chand Daga and Chimpalal Binani assigned in favour of Muthiar Chettiar, the appellant before us, their right,-title and interest under the decree by an indenture of assignment dated 9th November 1922. On 29th November 1922 the appellant as such assignee applied to the High Court for leave to execute the said decree and a notice under Order 21, Rule 16, Civil P.C. was directed to the original decree-holders and the defendants. Before the said application was made Kanappa Chetty one of the judgment-debtors, had died leaving behind Chidambaran Chetty as his only son heir and legal representative. The notice which was issued on Kanappa Chetty in ignorance of his death consequently became infructuous.
10. On 21st March 1923 the appellant made another application for leave to execute the said decree against Subramania Chetty. Ramanandan Chetty and Chidambaran Chetty applied for an order that the certified copy of the decree be transmitted to the Court of the Sub-Judge of Shivaganga in Bamnad in the Madras Presidency for execution. Notice was issued upon the assignors of the decree and also upon the Chetties to show cause why the decree should not be executed by the said transferee against the three Chetties. On 21st May 1923 Subramania appeared through his solicitor and got the application of the appellant adjourned till 23rd May 1923 when again the said Subramania applied for a further adjournment on the ground that he wanted to have the decree set aside and the execution thereof stayed On 13th June 1923 Subramania applied to the High Court to set aside the decree of 18th March 1912 and for the stay of the execution of the said decree on the ground) that he was never a partner in the defendants' firm and that the writ of summona in the suit was not at all served on him. A rule was issued by the High Court upon the assignors of the said decree and on the present appellant to show cause why the said decree should not be set aside and the execution thereof stayed. The rule came on for hearing on 17th August 1923 and it was ordered that the suit be placed on the list of motions for the trial of the issue as to whether the defendant Subramania Chetty was a partner of the firm of Shuna Vena Kanappa Chetty at the time of the institution of the suit in which the ex-parte decree dated 18tb March 1912 aforesaid was passed and it was further ordered that all further proceedings in execution of the said decree be stayed until the trial of the said issue.
11. On 29th May 1921 Thornhill, J., tried the issue and held that Subramania was a partner of the defendants firm at the time of the institution of the suit viz, 9th January 1912 and that he was unable to show that his interest in that business subsequently ceased. Thorn-hill, J., observed:
The result is that the application by Subramania Chetty to set aside the decree is dismissed with costs including costs of commission and the costs of the trial of issue as of a hearing.
12. On 9th April 1925 a second application for execution was made and the notice under Order 21, Rule 16, Civil P.C., was issued and the house of the defendant Subramania Chetty at Senalkudi (Madras) was attached. The attachment was raised by an order dated 13th January 1926. The appellant preferred an appeal against the said order which was dismissed on 20th August 1926. On 3rd September 1926 the present application; for execution was made and the defendant Subramania put in an affidavit in opposition in which he stated amongst other things that the application for execution of the decree was barred by the law of limitation and that the application should be dismissed with costs. The application was heard by C.C. Ghose, J., with the result that the learned Judge gave effect to the plea of limitation raised by Subramania and dismissed the application with costs.
13. Against that decision the present appeal has been preferred by Muthiar Chettiar, the assignee of the original decree-holder and it is contended by the learned Advocate-General who appeared on his behalf that the decision of the learned Judge is wrong inasmuch as he should have, held that the decision of Thornhill, J., dated 24th May 1924 operated as a revivor within the meaning of Article 183, Schedule 1, Lim. Act. It is contended that the said order by implication decided that the decree of 18th March 1912 was still capable of execution and it is said that Thornhill, J., when he held in May 1921, that the application of Subramania Chetty to set aside the decree should be dismissed laid down in effect that the decree was still capable of execution. On the other hand it is contended by Mr. S.N. Banerjee for the respondent that in order to constitute a revivor there must be an adjudication on an application for execution by the decree-holder that the decree is capable of execution and reliance has been placed on several decisions of this Court. In particular reference has been made to Ashootosh Dutt v. Doorga Churn Chatterjee (1881) 6 Cal. 504; Kamini Devi v. Aghore Nath Muhherjee (1910) 11 C.L.J. 91 : chuttarpat Singh v. Sait Sumari (1916) 43 Cal. 903 and Amulya Ratan Banerjee v. Banku Behari Chatterjee : AIR1925Cal668 .
14. It is not necessary to decide for the purposes of the present appeal whether in order to constitute a revivor an order must be made on an application for execution by the decree-holder. For I think in the present case the order of Thornhill, J., can in no sense be regarded as a determination by implication that the decree was capable of execution and that the decree-holder had a right to execute the decree. The question as to whether the decree-holder of the assignee had a right to execute the decree was not present to the mind of Thornhill, J., and it is conceded by the learned Advocate-General that no question of the right of the decree-holder to execute the decree by reason of lapse of time was raised before Thornhill, J., nor could it be so raised for having regard to the order staying execution of the decree the execution would not be barred on that date as under Section 15, Lim. Act, the decree-holder would be entitled to get a deduction of the time between 17th August 1923 and 29th May 1921 in computing the period of limitation. The true rule in cases of this kind has been laid down in the case of Kamini Devi v. Aghore Nath Muhherjee (1910) 11 C.L.J. 91, where it is observed that the essence of the matter is that to constitute a revivor of a decree, there must be expressly or by implication a determination that a decree is still capable of execution and the decree-holder is entitled to enforce it. An order for execution operates as a revivor because it necessarily implies such a determination. No question of execution was before Thornhill, J. He was only trying the issue as to whether Subramania was partner in the firm of the defendants and as such, liable under the decree against the firm. No question of right to execute the decree was before the learned Judge. One of the defendants applies to set aside the decree on the ground that he was not a partner of the firm against whom the decree has been made and the learned Judge's decision was confined to the single question as to whether he was a partner or not. Such an order cannot be regarded as an order determining the question whether the decree-holder has a subsisting right to execute the decree. Such an order does not fall within the definition of 'revivor' which, as Woodroffe, J., pointed out in Chutterpat v. Sait Sumari Muli (1916) 43 Cal. 903, means a decision holding that the decree was still capable of execution. The decree in the present case being dated 18th March 1912 and the application for execution having been made on 3rd September 1926 beyond twelve years of the decree the decree-holder has lost his right to have execution.
15. In this view I agree with my Lord the Chief Justice in dismissing the appeal.
16. The conclusion I have arrived at in this case is one that I somewhat regret, but I feel constrained to arrive at it. It is not a case in which there are on the part of the respondent Subramania any merits which could pre-dispose one to arrive at a conclusion in his favour.