1. The only question involved in this case is whether the execution of the decree is barred under Section 48 of the C. P. C. The decree was obtained against several persons including the present appellant who was defendant No. 3 in the Trial Court on the 7th July 1911. There, was an appeal against that decree by two of the defendants in the case, the present appellant not being a party to it either as appellant or respondent. The appeal of the defendants Nos. 1 and 2 was dismissed on the 23rd December 1912. Several applications for execution of the decree had been made by the plaintiff-decree-holder for costs as against the judgment-debtors. But the present application was made on the 13th July 1923, that is, more than 12 years after the decree passed against the defendants (c) which defendant No. 3, the present appellant, was a party, but less than 12 years from the decree of the Appellate Court of the 23rd December 1912 to which the present appellant was no party.
2. The contention on behalf of the appellant is that if the decree-holder is executing the decree of the Appellate Court of the 23rd December 1912 it cannot be executed ay against him because he was no party to the decree; but if it was the decree of 7 July 1911 which the decree-holder seeks to execute then it is barred by limitation under Section 48, C. P. C.
3. It seems to us that the contention of the appellant should be accepted. It is contended on behalf of the respondent that the fact that there was an appeal against the decree of the 7th July 1911 gives him the right to execute the decree as against defendant No. 3 counting the period of limitation from the decree passed by the Appellate Court. Reliance has been placed on behalf of the respondent on the case of Loke Nath Singh v. Gaju Singh 31 Ind. Cas. 426 : 20 C.W.N. 178 : 22 C.L.J. 333. But that case proceeded upon the question whether the execution of the decree was barred or not having regard to the provisions of Article 182 of the Indian Limitation Act. That case is not applicable to the present question as it depends on the provisions of Section 48, C. P. C.
4. The only ground on which the respondent can maintain his plea that the execution of the decree is not barred by limitation is that the decree of the Trial Court had been merged in the decree of the Court of Appeal. But the difficulty in his way is that the present appellant Was not a party to the appeal and consequently no order could have been made as against him by the Appellate Court by its decree. It cannot, therefore, be said that the decree of the Trial Court was merged in the decree of the Appellate Court.
5. The appeal, therefore, must succeed and the order of the Court below directing execution to proceed as against the appellant who was defendant No. 3 in the original suit must be set aside.
6. The appellant is entitled to his costs in all Courts. We assess the hearing-fee at two gold mohurs.