Authored By : Banerjee, Francis Maclean, Francis Maclean,Macpherson, Trevelyan, Banerjee, L.H. Jenkins

Banerjee, J.

1. This appeal arises out of an application for execution ofa decree for possession of certain Immovable property and for damages. Thefirst Court, on the 21st May 1886, gave the plaintiff a decree for possessionand for damages against all the defendants. Against that decree all thedefendants, except No. 1, preferred an appeal, and the Appellate Court, on the2nd July 1887, reversed so much of the decree as made the appealing defendantsliable for damages, but it affirmed the decree in every other respect. And asecond appeal from the decree of the Appellate Court was dismissed by the HighCourt on the 9th of July 1888.

2. The first application for execution was made in the Courtof the first Munsif of Howrah on the 7th of July 1891; it was returned by thefirst Munsif on the 21st of August following for want of jurisdiction; and itwas presented on the same day to the proper Court. The application asked forissue of notice on the judgment-debtor for delivery of possession and forattachment and sale of certain Immovable properties for realization of the costsand damages decreed. Notice under Section 248 of the Code was issued on thejudgment-debtors on the 8th September 1891, and on their objection that theparticulars required by Section 235 were incorrectly stated, the applicationwas, by an order of the Court, dated the llth January 1892, allowed to beamended. This last-mentioned order was reversed by the Appellate Court, and theMunsif was directed to deal with the application for execution as originallymade; and the execution case was dismissed by the Munsif, on the 13th July1892, for want of prosecution. A second application for execution made on the15th August 1893 was rejected on the 4th April 1894 for incorrectness in thestatement of necessary particulars, and then the present application was madeon the 19th of June 1894. The judgment-debtors urge that it was barred bylimitation; the first Court gave effect to this objection, but the LowerAppellate Court has reversed the decision of the first Court, and orderedexecution to proceed; and hence this appeal by the judgment-debtors.

3. Two contentions have been raised in this appeal:

First--That execution is barred against all the defendants,as the application of the 7th of July 1891 was not one according to law ; andas there was no other application within three years even from the date of thedecree of the High Court; and

Second---That even if the application of the 7th of July1891 be held to be one according to law, still execution is barred againstdefendant No. 1, as time runs in his case, not from the date of the decree ofthe High Court, but from the date of the decree of the first Court, that is,the 21st of May 1886, there having been no appeal by or against him from thatdecree.

4. In support of the first contention, it is argued by thelearned Vakil for the appellants that many of the particulars required bySection 235 of the Code were incorrectly stated in the application of the 7thof July 1891, and that it cannot therefore be regarded as an application madeaccording to law within the meaning of Article 179, Clause 4 of Schedule II ofthe Limitation Act; and the cases of Asgar Ali v. Troilokya Nath Ghose (1890)I.L.R. 17 Cal. 631 and Gopal Sah v. Janki Koer (1895) I.L.R. 23 Cal. 217 arerelied upon. It was conceded, however, and very properly conceded, that thedecree-holder was entitled under Section 14 of the Limitation Act to excludefrom computation the time from the 7th July to the 21st August 1891.

5. That being so, and the decree-holder being admittedlyentitled to reckon time as against at least some of the judgment-debtors fromthe date of the final decree in appeal, that is, the 9th of July 1888,execution is not barred against them, if the application of the 7th July 1891is one within the meaning of Clause 4 of Article 179, that is, if it is anapplication according to law within the meaning of that Clause.

6. Now the question whether an application for execution orfor taking some step in aid of execution is one according to law within themeaning of Article 179, Clause (4), has to be determined with reference to thecircumstances of each case; and while on the one hand an application must be insubstantial compliance with the law in order that it may be regarded as onecoming within the meaning of Clause 4, on the other hand, it is not everyinformality that would vitiate an application and take it out of that Clause.Were it otherwise, bond fide applications for execution would fail to savelimitation owing to trivial defects of form,---a result which I do not think theLegislature could have intended. The view I take is amply supported by theauthority of decided cases of which I need only refer to Bal Kishen v. Bedmati(1892) I.L.R. 20 Cal. 388 and Rama v. Varada (1892) I.L.R. 16 Mad. 142.

7. The two cases cited by the learned Vakil for theappellants are clearly distinguishable from the present. In Asgar Ali v.Troilokya Nath Ghose (1890) I.L.R. 17 Cal. 631 while the decree-holder, as Igather from the judgment of Prinsep, J., asked for the sale of the Immovable propertyof the judgment-debtor "as per list," no list was attached to theapplication, so that the application did not comply with Section 237 of theCode, and no execution could be taken out thereon owing to this materialdefect. So also in Gopal Sah v. Janki Koer (1895) I.L.R. 23 Cal. 217 theapplication, which was considered to be one not according to law, was found tobe materially defective in not complying with Sections 235 to 238. Mr. JusticePrinsep in his judgment in this last mentioned case observes : "One of theerrors committed by the decree-holder was in misstating the amount of hisdecree in a lesser sum than he was given, and the Subordinate Judge hasconsequently limited the execution to that smaller sum. If that had been theonly defect the decree would have been capable of being executed for thesmaller sum. But in other respects, which it is unnecessary to mention, theapplication failed to comply with the requirements of Sections 235, 236, 237and 238 applicable to the case." These observations go to some extent tosupport the view I take, that it is only material defects that can vitiate anapplication. In the present case, the defects in the application of the 7th ofJuly 1891, as the Lower Appellate Court has shown, were not of a material character.The application asked for delivery of possession of the property covered by thedecree, and the decree could well have been executed so far as this part of theprayer was concerned. It is admitted again that the application contained alist of the Immovable property sought to be attached and sold for therealization of the money decreed, so that there was no want of compliance withthe provisions of Section 237 of the Code here. Moreover, though the amendmentallowed by the first Court was set aside on appeal, the Appellate Court did nottreat the application as one not made according to law, but remanded the caseto the first Court to deal with the application as originally made--a coursewhich it could not have taken if the application had been considered as notmade according to law. Lastly, granting that the application of the 7th of July1891 was informal and defective as an application for execution of decree, itwas at any rate, as pointed out by the learned Vakil for the respondent, an applicationo take some step in aid of execution, that is to say, to issue a notice underSection 248 of the Code which was here necessary, the decree having been passedmore than one year before. A notice was issued according to the prayer made inthis application, and the application and the notice were sufficient to keepthe decree alive. See Behari Lal v. Salik Ram : (1878) I.L.R.1 All. 675 and Dhonkal v. Phakkar (1893) I.L.R. 15 All. 84.

8. The first contention of the appellants must thereforefail.

9. In support of the second contention that time runs asregards defendant No. 1 from the date of the decree of the first Court, thecases of Hur Proshad v. Enayet IIossein (1878) 2 C.L.R. 471 and Raghu Nath v.Abdul Hye (1886) I.L.R. 14 Cal. 26 are relied upon. These cases are in conflictwith that of Gunga Moyce v. Shib Sunker (1878) 3 C.L.R. 430 which I am inclinedto follow, as the decision in this last mentioned case appears to be more inconformity with the language of the law, than that in the two cases cited forthe appellants. Moreover, Explanation I to Article 179 of Schedule II of theLimitation Act makes a distinction between a joint decree against severaldefendants and a decree in which separate reliefs are granted against differentdefendants, with reference to Clause 4 while no such distinction is made withreference to Clause 2; and this to my mind is a clear indication that theLegislature intended that time should run from the date of the final decree ofthe Appellate Court where there has been an appeal irrespective of the questionwhether the appeal related to the whole decree or not.

10. In this conflict of decisions in this Court, a referenceto a Full Bench becomes necessary, and as this is an appeal from an Appellate orderhaving the force of a decree, the whole case must be referred to a Full Bench.

Francis Maclean, C.J.

11. I agree that this case should be referred to a FullBench reserving my opinion upon the question raised.

12. Babu Prosonno Gopal Roy, for the Appellant.

13. Babu Nil Madhub Bose and Babu Shib Chunder Palit, forthe Respondent.

14. Babu Prosonno Gopal Roy.---The application for executionis barred by limitation. It is a defective application, as it does not give theright number of the suit, the date, and the amount of the decree. That beingso, the application is not one made in accordance with law. See Section 235 ofthe Code of Civil Procedure, and the cases of Gopal Sah v. Janki Koer (1895)I.L.R. 23 Cal. 217 (223) and Chowdhry Paroosh Ram Das v. Kali Puddo Banerjee(1889) I.L.R. 17 Cal. 53. If it is an application not made in accordance withlaw, the issue of a notice under Section 248 of the Code of Civil Procedurewould not save limitation. Application in aid of execution must be made accordingto law, in furtherance of the execution proceedings under a decree. See SujanSingh v. Hira Singh (1889) I L.R. 12 All. 399 (402) and Dalichand v. BaiShivkor (1890) I.L.R. 15 Bom. 242. The execution as against defendant No. 1, atleast, has been barred by limitation. Limitation as against him would runeither from the date of the decree of the first Court, or of the AppellateCourt, as there was no appeal by or against him. See the cases of Hur ProshaudRoy v. Enayet Hossein (1878) 2 C. L. R. 471; Harkant Sen v. Biraj Mohan Roy.(1895) I.L. R. 23 Cal. 876; Mashiat-un-nissa v. Rani (1889) I.L.R. 13 All 1;Muthu v. Chellappa (1889) I.L.R. 12 Mad. 479: Rughu Nath Singh v. PareshramMahata (1882) I.L.R. 9 Cal. 635; Mullick Ahmed Zumma v. Mahomed Syed (1880) I.L. R. 6 Cal. 194

15. Babu Nil Madhub Bose, for the Respondent, was not calledupon.

16. The opinion of the Full Bench was delivered by Maclean,C.J. (Macpherson, Trevelyan, Banerjee, and Jenkins, JJ., concurring).

Francis Maclean, C.J.

17. Although in the reference I have reserved my opinion onthe point referred to the Full Bench, I had the advantage of hearing thearguments addressed to Mr. Justice Banerjee and myself in the Court below, andof discussing the matter with him, and I am in entire agreement with theopinion he has expressed upon the question of whether the application forexecution of the 7th July 1891 was or was not one according to law. I concurboth in the reasoning and in the conclusion expressed by Mr. Justice Banerjee;and as regards the point which has been referred to the Full Bench, namely,whether the time from which the period is to begin to run is, as regards thedefendant No. 1, the date of the decree pronounced on the appeal or the date ofthe decree of the first Court, I am of opinion that it begins to run from thedate of the decree on appeal. I only propose to add one or two brief remarks towhat Mr. Justice Banerjee has said. With respect to the case decided in theAllahabad High Court, the case of Mashiat-un-nissa v. Rani (1889) I.L.R. 13All. 1 the first comment I make is that in that case there was a markeddifference of opinion amongst the Judges who heard and decided it, and, in thenext place, the facts were clearly distinguishable from those of the presentcase, inasmuch as here the decree was a joint one, whilst in the Allahabad casethe decrees were separate, or any way tantamount to separate decrees againsteach of the defendants. There is no doubt a dictum of C.J. Edge which supportsthe present appellants view, but it was obiter and not necessary for thepurposes of that particular decision. I allude to the passage as to theapplication of Clause 2, article 179 on page 13. For myself I prefer thereasoning and the conclusion of the two learned Judges who were in the minorityin that case, and to read the language of sub-Section 2 of Article 179 of thesecond schedule to the Limitation Act according to the ordinary significationof the words used. That article says that, where there has been an appeal, thedate of the final decree or order of the Appellate Court shall be taken to bethe time from which the period is to begin to run. There is no suchqualification in the article as is suggested by the majority of the Judges inthe Allahabad case, and which must be read into the article in order to supporttheir view, n(sic) is there anything to lead me to suppose that any suchqualification or modification was intended by the Legislature. The language ofthe article is reasonably clear, and in my opinion the safer course is toconstrue it according to the ordinary meaning of the words used. Again, uponthe question of convenience, the convenience seems to me to be all in favour ofthe view which I take. In my opinion, the answer to the question submitted tous should be, that the time runs, as against the defendant No. 1, from the dateof the final order of the Appellate Court, which was that of the High Court,dated the 9th July 1888; and that being so, the application for execution ofthe 7th July 1891 was not out of time. The appeal fails and must be dismissedwith costs, including the costs of this reference.

Macpherson, J.

2. I agree with the Chief Justice on both points.

Trevelyan, J.

3. I also agree.

Banerjee, J.

4. I am of the same opinion.

L.H. Jenkins, J.

5. I am of the same opinion.

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