1. This is an appeal on behalf of the judgment-debtor against an order made in the course of proceedings in execution of a decree for money. The District Judge, in reversal of the decision of the Court of first instance, has held that the respondent is entitled to proceed with the execution of his decree.
2. The facts, so far as it is necessary to state them for the disposal of the question of law raised before us, lie in a narrow compass. One Uma Charan Sadhnkhan, the predecessor-in-interest of the appellant, held a mortgage-decree against the respondent Priya Nath Dutt. Proceedings were taken in execution of this mortgage-decree and the mortgaged properties were sold. Attempts were then made by the mortgagor to have the execution sale set aside. In the course of these proceedings, the objections of the mortgagor were overruled and an order was made in favour of Uma Charan for cists to the extent of about Rs. 59. This order war, made on the 3rd December 1896. It was subsequently discovered that the mortgagee decree-holder had been overpaid from the sale proceeds and on the 2nd January 1904, an order was made in favour of Priya Nath, the mortgagor, for restitution of about Rs. 49. The position, therefore, was that Priya Nath held a decree for Rs. 49 against Uma Charan and Uma Charan held a decree against Priya Nath for Rs. 59. On the 8th January 1904, Uma Charan applied for execution of his decree for costs and obtained an order for attachment of the decree for restitution which had been made in favour of Priya Nath, The attachment was effected on the 23rd March 1904, but it does not appear that any order was made, as might and ought to have been made, under Section 243 of the Code of 1882. If any such order had been made, the result would have been that the amount due to Priya Nath would have been set off against the amount due to Uma Charan. Apparently, however, the parties proceeded under Section 273 of the Code with the result that the decree of Priya Nath was attached. The Court, thereupon, directed Uma Charan to take further proceedings in execution of his decree. As no such steps were taken, the application of Uma Charan for execution was dismissed for non-prosecution on the 29th March 1904. On the 17th September 1908, Priya Nath applied for execution of the decree made in his favour for the sum of Rs. 49. Two objections were urged on behalf of the representatives of Uma Charan, who had in the meanwhile died; first, that the effect of the attachment made on the 21st March 1904 was the satisfaction of the decree held by Priya Nath; in other words, that although there had not been any express order of set-off, the intention and effect of the proceedings was a set off, with the result that the right of Priya Nath under his decree was extinguished; secondly, that in any view, the application for execution presented by Priya Nath on the 17th September 1908 was barred by limitation, inasmuch as it was made more than three years after the date of the last order for execution, that is, the 2nd January 1904. The Court of first instance held that the first of these contentions was substantially correct and directed that the decree sought to be executed by Priya Nath should be formally set-off against the decree held by Uma Oharan. In this view, the application for execution was dismissed. Upon appeal the District Judge has reversed this order. He has hold that as there was no express order for setting-off the decree for the smaller sum against the decree for the larger sum and as any application for execution of the decree for the larger sum would now be successfully met by the objection of limitation, no order of set-off could be made in the present proceedings. He has further held that the application for execution by Priya Nath, though made more than three years after the date of the last order for execution, was not barred by limitation, because during the period when the attachment effected by Uma Charan continued in force, it was impossible for Priya Nath to apply for execution of his decree. In this view the District Judge has directed execution to proceed.
3. The representatives of Uma Charau, against whom this order has been made, have now appealed to this Court, and on their behalf, it has been argued that even if it be assumed that any possible application for execution of their decree against Priya Nath would now be successfully met by the plea of limitation, a similar objection applies to the application for execution by Priya, Nath himself. It has boon contended that the only statutory provision, under which the bar of limitation might he sought to be removed, is Section 15 of the Limitation Act of 1877, which, however, is not applicable to applications for execution of decrees. In support of this position reliance has been placed upon the cases of Lntf-ul-Huq v. Snmbhudiu Puttnck 8 C. 248 : 10 C.L.R. 143; Kalyanbhai Dipchand v. Ghanashamlal 5 B. 29; Narayana v. Pappi Brahmani 10 M. 22 and Rajarathnam v. Shivahayawmal 11 M. 103. Keference has also been made to the cases of Dhukiram Srimani v. Jogendra Chandra Sen 5 C.W.N. 347; Wazid-un-nissa Khatoon v. Jagendra Chandra Sen 5 C.W.N. ceexxxn Sarup Ganjan. Singh v. Robert Watson and Co. 6 C.W.N. 735 and Thakur Prasad v. Abdul Husan 23 A. 13. It may be conceded at once that Section 15 of the Limitation Act of 1877 does not by itself apply to an application for execution of a decree. That section provides for exclusion of time in the computation of the period of limitation prescribed for any suit when the commencement of such suit has been stayed by an injunction or order. Section 3 of the Limitation Act defines the term suit, and exclude from its scope an appeal or an application. It cannot be seriously disputed, therefore, that the view indicated in the cases of Lutful Huq v. Shambhudin Pattuck 8 C. 248 : 10 C.L.R. 143; Rajarathnam v. Shivalayammal 11 M. 103 and Kalyanbhai Dipehand v. Ghanshalal Jodunathji 5 B. 29, namely, that Section 15 is inapplicable to applications for execution of decrees is well-founded. The other class of cases, upon which reliance was placed by the learned Vakil for the appellant, is of no real assistance to his contention, because no question really arose there about the effect and operation of Section 15 of the Limitation Act. In these cases an application for execution of a decree had been presented in the first instance and execution had been subsequently stayed by an injunction or order. Upon the dissolution of the injunction or withdrawal of the order, followed by an application for execution of the decree, the question was raised, whether or not the application could be treated as a revival of the previous application, the operation of which had been suspended by reason of injunction or other prohibitory order. The Courts held that in these circumstances, that is, when there had been a previous application for execution followed by an injunction or prohibitory order, the subsequent application for execution could rightly be treated as one in revival of the previous application. This view is in fact supported by the decision of the Judicial Committee in the case of Qamar-ud-din Ahmad v. .Taivahir Lal 27 A. 384 : 1 C.L.J. 381 : 15 W.L.J. 268 : 9 C.W.N. 601 : 2 A.L.J. 397 : 7 Bom. L.R 433, though the learned Judges of the Madras High Court in the case of Namyon Nanhi v. Pappi Brahmani 10 M. 22, appear to have overlooked this well recognized doctrine. In so far, therefore, as Section 15 of the Limitation Act is conceded, it is clear that it is of no assistance to the decree-holder.
4. Two other questions, however, require consideration; namely, first, whether apart from the provisions of Section 15, the principle embodied there may not be extended to applications for execution of decrees and, secondly, whether the present application for execution may not be treated as falling within the scope of art. 178 of the second Schedule of the Limitation Act rather than within Article 179.
5. In so far as the first of these points is concerned, the view put forward by the decree-holder respondent is supported by the decision of the Bombay High Court in the case of Naval Chand Nem Chand v. Amir Chand Talak Chanel 18 B. 734. In that case a possessory decree was obtained by the plaintiff. The unsuccessful defendant commenced an action for declaration of title and for recovery of possession as also an injunction to restrain the successful plaintiff in the possessory suit from proceeding with execution of his decree. During the pendency of the title suit, execution of the possessory decree was stayed by an injunction of the Court. Ultimately, the title suit was his missed. The plaintiff in the possessory suit then applied for execution of his decree. Meanwhile more than three years had elapsed from the date of such decree. Objection was taken by the judgment-debtor that the application for execution was barred by limitation. Sir Charles Sargent, C.J., held that the decree-holder was entitled to a deduction of time during which the execution of his decree had been stayed by an injunction from the Court. In support of the view the learned Chief Justice relied upon the decision of the Judicial Committee in the case of Hiralal v. Radridas 2 A. 792 : 71. A. 167, which turned upon the construction of Section 14 of Act XIV of 1859. That section allowed a deduction of time in the case of institution of suits, when the plaintiff had proceeded bona fide in a Court without jurisdiction. The question before the Judicial Committee was whether the same principle might not be extended to cases of applications for execution of decrees under Section 20 of the Limitation Act of 1859. The Judicial Committee did not hold that although Section 14 was by its terms limited in application to suits, the Court might apply the same principle to applications for execution of decrees. In fact, any such view, if adopted, would be open to just exception as equivalent to judicial legislation. What their Lordships of the Judicial Committee did was to construe Section 20 of Act XIV of 1859 as saving an application for execution of a decree from the bar of limitation when a previous application for execution had been presented in a Court which had no jurisdiction to execute the decree. The question before the Judicial Committee was really not one of extension of Section 14 to cases not expressly covered thereby, but rather a question of the interpretation of Section 20 in the light of the principle embodied in Section 14. It would not be right, therefore, to treat the decision of the Judicial Committee as any authority in favour of the contention that altheugh Section 15 is by its very terms limited to suits, it is yet open to the Court to apply the principle deducible from it to applications for executions of decrees. That this is the true effect of the decision of the Judicial Committee is clear from the cases of Sheik Jafar v. Kamalini Debi 5 C.W.N. 150 and Jahar v. Kamini Debi 28 C. 238. We must consequently hold, however, illogical from the point of view of principle the conclusion may seem to be, that the rule embodied in Section 15 is limited in its application to suits and cannot be extended to applications for execution of decrees. This, in fact, was the view taken by Mr. Justice Bhasyam Ayyangar in the case of Rungiah Counden v. Nanjappa Row 26 M. 780 at p. 783 : 13 M.L.J. 412. The learned Judge severely criticised the policy of the legislature in restricting the operation of Section 15 of the Limitation Act, but he was constrained to adopt the conclusion that so long as the legislature did not interfere, Section 15 could not be extended to applications for execution of decrees. In our opinion, the application for execution presented on the 2nd January 1904 cannot be deemed as saved from the bar of limitation if reliance is placed upon the principle deducible from Section 15 of the Limitation Act.
6. In so far as the second point of view put forward on behalf of the decree-holder is concerned, it is urged that the application for execution is governed not by Article 179 but by Article 178. This, in fact, was the view taken in the case of Rungiah Gonnden v. Nanjappa Row 20 M. 780 at p. 783 : 13 M.L.J. 412, but with all respect for the learned Judges of the Madras High Court, we are unable to adopt this view as well-founded. Article 178 is applicable only to application, for which no period of limitation is provided elsewhere in the Schedule to the Limitation Act but it is clearly inapplicable to applications for execution, because it is impossible to exclude the operation of Art. 179 which applies explicitly to all applications for execution of decrees not provided for by Art. 180 or by Section 228 of the Code of Civil Procedure of 1882. In our opinion, therefore, the present application is governed by art. 179 and, in that view it must be treated as barred by limitation.
7. We may add that the difficulty to which we have alluded has now been removed by the legislature because Section 15 of Act IX 1908 has been so framed as to be applicable, not only to suits but also to applications for execution of decrees. In fact this very amendment indicates that Section 15 of the Limitation Act of 1877 was not applicable to applications for execution of decrees. In other words, altheugh the legislature has now adopted the view taken by Mr. Justice Bhashyam Ayyangar in Rungiah v. Nanjappa 20 M. 780 at p. 783 : 13 M.L.J. 412 and previously indicated in a critical note in the Madras Law Journal (5 M.L.J. 343), that is conclusive proof that the effect of Section 15 of the Act of 1877 was of an entirely limited character. It is further worthy of note that in the view we take of this matter, it is superfluous to consider whether the attachment of the decree of Priya Nath did operate as a bar sufficient to bring the case within Section 15 of the Act of 1908, had it been applicable. But we may point out that the decision of the Allahabad High Court in the case of Shib Singh v. Sitaram 13 A. 76, in which it was ruled that the attachment of a decree does not by itself operate as a bar to its execution, is distinguishable. There a decree obtained by A against B was attached at the instance of X with the result that it might have been executed at the instance of X. Here, however, the effect of the attachment was to render execution impossible so long as the attachment subsisted. In the case before us, there can be no question that the attachment continued in operation for the period during which the decree of Uma Charan remained capable of execution. Inasmuch as that decree did not become barred by limitation till the 8th January 1907, in any reasonable view of the facts of the case, the conclusion would be inevitable that the attachment also continued to operate till the 8th January 1907, In other words, the present petitioner Priya Nath was not in a position to execute his decree till the 8th January 1907 and if it had been open to him to avail himself of the provisions of Section 15 of the Limitation Act, his position would have been unassailable that his application was not barred by limitation.
8. The result is that the appeal must be allowed, the order of the District Judge discharged, and the order of the Court of first instance refusing to allow execution to proceed, restored, but not for the reasons given by that Court.
9. There will be no order for costs in any of the Courts.