The sole question upon this appeal is whether execution of an ax parte decree passed by this Court on the Original Side, on the 18th March, 1912, is barred by Article 183 of the First Schedule to the Limitation Act, 1908. The period of limitation is twelve years and, when the decree hasbeen 'revived', the twelve years have to be computed from the date of revivor. The present application for execution was made on the 3rd September, 1925. 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 the 29th May, 1924, so far as the original judgment-debtor Subramania Chetty is concerned.
The relevant facts, when disentangled, are really these. On the 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 Subramania does not matter, for, on the 31st May, 1923, he appeared through his Solicitor 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 of Order XXI, 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 the 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 was 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.' Apparently, the validity of the decree depended on this issue, which was determined against him by an order of Mr. Justice Thornhill, dated the 29th May, 1924. Twelve years had meanwhile expired, on the 17th March, 1924, since the date of the decree and it is this order of the 29th May, ly24, that 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 Bet aside the decree is dismissed. As the interim stay granted on the 17th August was expressed to be 'until the trial of the said issue' it came to an end of itself and without further order.
What followed has no bearing upon the present question, but to make the matter clear it may be mentioned that on the 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 the 18th May, 1923, obtained an order, giving him leave to execute the decree which order was afterwards set aside.
It is contended for the appellant that the order of the 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 Debi v. Aghore Nath Mukerjee 4 Ind. Cas. 402; 14. C.W.N. 357; 11 C.L.J. 91. That was a caae of an application to execute a decree, and 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 attach-ment was made. It was held that the Court had impliedly decided that the decree-holder was entitled to have execution.
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 of Order XXI. 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 the 29th May, 19i4, really concluded the matter and was, therefore, a decision by implication that the appellant was entitled to enforce the deeree. This was the main argument of the learned Advocate-General, but I think it is an illegitimate extension of the principle applied in Kamini Deb v. case (t). 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 he 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 Mr' Justice Thornhill, 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 the 17th August. 1923, and the Rule of the 13th June, 1923. It seems clear enough that if the application of the 21st March, 1923, 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 taka upon the summons. Any that he could take upon the summons were open to him.
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 bean shown in this case. I think the appeal should be dismissed with costs.
This is an appeal from a judgment of my learned brother, Mr. Justice C.C. Ghose, dated the 14th of April, 1927, dismissing an application of the appellant for execution, on the ground that the said application is barred by the Statute of Limitation.
The facts which are material for the purposes of thi3 appeal may be briefly stated as follows:
On the 18th of 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 Ohampalal Binani (plaintiffs) and against a firm whose proprietors were Kanappa Chetty, Subramania Chetty and Ramanandan Chetty (defendants). The said three Ohettys were members of a joint Mitakshara family and were carrying on business in co-partnership under the name and style of Shuna Vena Kanappa 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 Kader Nath Daga, the only son, heir and legal representative of the said Sugan Chand Daga, and Champalal 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 the 9th ofHov-femher, 1922. On the 29th of November, 1922. the appellant, as such assignee, applied to the High Court for leave to execute the said decree and a notice under Order XXI of the Civil Procedure Code 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 Ohidambaran Ohetty as his only son, heir and legal representative. The notice, which was issued on Kanappa Chetty, in ignorance of his death, consequently became infruetuous. On the 21st of March, 1923, the appellant made another application for leave to execute the said decree against Sub-ramania Ohetty and Eamanandan Chetty and Ohidambaran Chetty and applied for an order that the certified copy of the decree be transmitted to the Court of the Sub-Judge of Shivaganga in Eamnad in the Madras Presidency for execution. Notice was issued upon the assignors of the decree and also upon the Ohettys to show cause why the deeree should not 'be executed by the said transferee against the three Ohettys. On the 21b1 of May, 1923, Subramania appeared through his Solicitor and got the application of the appellant adjourned till the 23rd of 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 the 13th June, 1923, Subramania applied to the High Court to set aside the decree of the 18th March, 1912, and for 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 summons 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 sliould not be set aside and the execution thereof stayed. The Eule came on for hearing on the 17th of 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 the 18th of 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 eaid issue.
On the 29th of May, 1924, Mr. Justice Thornhill tried the issue and held that Subramania was a partner of the defendants' firm at the time of the institution of the suit, viz., the 9th January, 1912, and that he was unable to show that bis interest in that business subsequently ceased. Mr. Justice Thornhill observed: 'The result is that the application by Subramania Ohetty 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.'
On the 9th of April, 1925, a second application for execution was made and the notice under Order XXI, Rule 16, of the Civil Procedure Code was issued and the house of the defendant Subramania Chetty at Senalkundi (Madras) was attached. The attachment was raised by an order, dated the 13th of January, 1926. The appellant preferred an appeal against the said order which was dismissed on the 20th of August, 1926. On the 3rd of 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 Mr. Justice C.O. Ghose, with the result that the learned Judge gave effect to the plea of limitation raised by Subramania and dismissed the application with costs.
Against that decision, the present appeal has been preferred by Muthiar Ohettiar, 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 Mr. Justice Thornhill, dated the 24th of May, 1924, operated as a revivor within the meaning of Article 183 of the First Schedule of the Limitation Act. It is contended that the said order by implication decided that the decree of the 18th of March, 1912, was still capable of execution and it is said that Mr. Justice Thornhill, when he held in May that the application by 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 Oourfc. In particular reference has been made to Ashootosh Butt v. Doorga Churn Chatter jee 6 C. 501 at p. 509; 8 C.L.J. 25; 3 Ind. Dec. (N. S.) 328, Kamini Debi v. Aghore Nath Mukherji (1), Chutterput Singh v. Salt Soomari Mai 36 Ind. Cas. 602; 43 Order 903; 20 C.W.N. 889; 23 C.L.J. 645 and A mulya Ratan Baner-jee v. Bariku Behari Chatterjee : AIR1925Cal668 .
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 that in the present case, the order of Mr. Justice Thornhill 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 or the assignee had a right to execute the decree was not present to the mind of Mr. Justice Thornhill and it is conceded by the learned Advocate-General that no question of the right of decree-holder to execute the decree by reason of lapse of time was raised before Mr. Justice Thornhill, nor could it ba so raised, for, having regard to the order staying execution of the deoree, the execution would not be barred on that date, as under Section 15 of the Limitation Act the decree-holder would be entitled to get a deduction of the time between the 17th August, 1923; and 29th May, 1924, in computing the period of limitation. The true rule in cases of this kind has been laid down in the case of Kamini Debi v. Aghore Nath Mukerji (1) where it is obsarved 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 Mr. Justice Thornhill He was only trying the issue as to whether Subramania was a 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 Mr. Justice Woodroffe pointed out in Chutterput Singh v. Salt Soomari Mal (3) means a decision holding that the decree was still capable of execution. The decree, in the present case, being dated the 18th March, 1912, and the application for execution having been made on the 3rd September, 1926, beyond twelve years of the decree, the decree-holder has lost his right to have execution.
In this view, I agree with my Lord the Chief Justice in dismissing the appeal.
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 predispose on to arrive at a conclusion in his favour.