1. This appeal, preferred by the judgment-debtor, is directed against an order by which execution for costs has been allowed to proceed on the basis of an order of Her late Majesty in Council made on the 17th May 1888. The order of the Court below has been assailed on two grounds, namely, first, that the application for execution which was presented on the 4th March 1907, is barred by limitation, and secondly that certain payments, alleged to have been made but admittedly not certified to the Court under Section 258 of the Code of 1882, ought to have been allowed to be proved under Section 244.
2. In support of the first contention it has been argued, in the first place, that there was no revivor of the decree of Her Majesty in Council within the meaning of Article 180 of the Indian Limitation Act of 1877, and in the second place, that even if Article 180 governs the matter, it has no application in so far as the execution relates to the recovery of the costs allowed by the Courts in this country. The facts relevant to the first branch of this argument are not disputed. It appears that after three applications for execution in 1889 and 1891 to which no detailed reference is necessary for our present purpose, the fourth application was made in 1894, to which the judgment-debtor objected on the ground that it was barred by limitation. The Subordinate Judge overruled the objection on the 9th March 1895. after this decision, however, the decree-holder intimated to the Court that he would not proceed with the execution at that time, and the Subordinate Judge recorded the following order: I see no reason to hold that the decree is barred. Objections overruled. The decree-holder's pleader states that the decree-holder does not wish at present to proceed with the case. The application is struck off'. It has been argued by the learned Vakil for the appellant that inasmuch as there was no express order for execution on the 9th March, 1895, there was no revivor of the decree within the meaning of Article 180 and in support of this position reliance has been placed upon the cases of Monohar Das v. Futteh Chand 30 C. 979 and Umrao Singh v. Lachmi Narain 26 A. 361. In our opinion the cases to which reference has been made are clearly distinguishable, and do not lend any support to the contention of the appellant. In the first of these cases, an application for execution was made and notices were directed to issue under Sections 232 and 248 of the Code, but subsequently the proceedings were dropped. Under these circumstances it was ruled, that there was no revivor of the decree. But Mr. Justice Harington pointed out, with reference to the decision in the case of Suja Hossein v. Monohur Das 24 C. 244 that there would have been a revivor of the decree if an order had been made which gave the decree -holder a right to execute the decree and that from the date of such order there would have been a fresh startling point of time. Substantially to the same effect are the decisions in Umrao Singh v. Lachmi Narain 26 A. 361 and Ganapathi v. Balasundara 7 M. 540. The essence of the matter is that to constitute a revivor of the decree, there must be, expressly or by implication, a determination that the 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. In the case before us, the objection of the judgment-debtor was overruled and it was decided that the decree was not barred by limitation: The effect of this order was to entitle the decree-holder to proceed with the execution and there was consequently a revivor of the decree. The learned Vakil for the appellant has not been able to. dispute the position that there would have been a revivor of the decree; if after the objection of the judgment-debtor had been overruled, an order for execution had been recorded, and, the proceedings had been discontinued the very next day by reason of the failure of the decree-holder to pay the process-fees. In our opinion there is no intelligible difference in principle between that case and the one now before us. We must accordingly hold that there was a revivor of the decree, and we are supported in this view by the decision of this Court in the case of Jogendra Chandra Roy v. Sham Das (1909) 1 Ind. Cas. 168; 9 C.L.J. 271; 33 C. 543. The first reason upon which the plea of limitation is sought to be sustained cannot be supported.
3. It has been argued in the second place in support of the plea of limitation that Article 180 applies only in so far as the costs allowed by the decree of the Privy Council are concerned and that in so far as the decree-holder seeks to recover the costs of the Court of first instance and of this Court, the application is governed by Article 179 of the Limitation Act. This contention is clearly opposed to the decision of a Full Bench of this Court in the case of Luchmun Persad Singh v. Kishun Pershad Singh 8 C. 218; 10 C.L.R. 425 where it was ruled that although an order of Her Majesty in Council might merely confirm a decree of the Court below, that order was the paramount decision in the suit and any application to enforce it was in point of law an application to execute the order and not the decree which it confirmed; to such an application in its entirety Article 180 is applicable. It is clear, therefore, that the present application for execution is not barred by limitation.
4. The second ground upon which the decision of the Subordinate Judge has been assailed relates to certain alleged payments which were not certified under Section 258 of the Code of 1882. It has been strenuously contended that it was open to the judgment-debtor to prove and obtain credit for these payments under Section 244 even after the lapse of the time prescribed by Article 173 A of the Limitation Act of 1877 for making an application under Section 258. In support of this Contention reliance has been placed upon the cases of Dinobundhu Nundy v. Hari Mati Dasee 31 C. 480; 8 C.W.N. 797 Azizan v. Matuk Lal Sahu 21 C. 437 and Gadadhar Panda v. Shyam Charan Naik 12 C.W.N. 485. None of these cases, however, really lends any support to the contention of the appellant. The first two cases to which reference has been made merely lay down that if a payment has not been certified under Section 258, a suit is not maintainable to establish such a payment and to obtain an injunction restraining the decree-holder from executing the decree on the ground that it has been satisfied. No doubt in the case of Denobundhu Nundy v. Hari Mati Dassee 31 C. 480; 8 C.W.N. 797 the learned Judges observed that Section 244 was a bar to such a suit and Section 258 did not restrict the operation of that section. It is obvious, however, that this is so for the reason that a proceeding under Section 258 falls within the scope of Section 244. But as explained in the case of Gadadhar Panda v. Shyam Churn Naik 12 C.W.N. 485 the learned Judges never intended to lay down that a payment not duly certified under Section 258 may be proved under Section 244 even though an appropriate application in that behalf under the former section, would be successfully met by the plea of limitation. Indeed, if the contrary view were maintained, the effect of Article 173 A of the Limitation Act would be completely nullified. The view we take is supported by the cases of Ram Doyal Banerjee v. Ramhari Pal 20 C. 32 and Bairagulu v. Bapanna 15 M. 302 where it was ruled that a payment which has not been certified under Section 258 cannot be proved under Section 244 of the Code. It may further be observed that this position is obvious from Clause 3 of Section 258 itself, which provides that unless a payment or adjustment has been certified it shall not be recognised as a payment or adjustment of the decree by any Court executing the decree. It is manifest, therefore, that the payments which are alleged in this case to have been made some years ago, and which have not been certified to the Court under Section 258, within the time allowed by the law, cannot now be proved under Section 244. The second ground upon which the order of the Court below is attacked thus completely fails.
5. The result, therefore, is that the order of the Court below must be affirmed and this appeal dismissed with costs. We assess the hearing fee at five gold mohurs.