- (1.) THIS is an appeal by the judgment-debtor Bhuralal against the judgment and decree of the District Judge, Bhilwara, dated the 3rd March, 1952, arising out of certain execution proceedings.
(2.) THE respondent Jiwansingh and his brother Sohansingh (who is represented in this appeal by his assignee Motisingh) filed a suit against the appellant for redemption of a pledge of certain ornaments and obtained a decree on the 28th August, 1940, that they would be entitled to redeem the ornaments on payment of Rs. 547/4/- to the defendant. This decree was confirmed on appeal. On the 30th January, 1943, Sohansingh alone applied for execution of the decree. Some trouble arose as Jiwansingh had not been made a party to the application for execution and, therefore, on the 9th May, 1943, Sohansingh stated that he was asking for execution with respect to his share of the decree. On the 6th February, 1945, the judgment-debtor objected that he had already compromised the decree with one of the decree-holders, Jiwansingh, on the 20th May, 1911. This objection was not decided. On the 18th December, 1946, Moti Singh deposited a sum of Rs. 530/- in court to be paid to the judgment-debtor. On the 21st March, 1947, the execution application was, however, dismissed for the decree holder's default. THEn Motisingh filed a second execution petition on the 15th October, 1947, This application was dismissed on the 20th January, 1949, on the ground that Motisingh alone had no right to execute the decree. This led to a further execution application on the 4th April, 1949, which was filed by both Jiwan Singh and Motisingh and it is this application out of which the present appeal has arisen. Bhuralal raised two objections. (1) that the decree had already been compromised with Jiwan Singh and (2) that the execution application dated the 4th April, 1949, was barred by time. THE executing court repelled both these objections. THE judgment debtor then went in appeal to the District Judge, Bhilwara and the latter modified the decree of the executing court and held that Jiwan Singh was not entitled to execute the decree but Moti Singh as assignee of the other decree-holder Sohan Singh was entitled to execute the decree to the extent of his half share on payment of half the decretal amount allow by the trial court. This appeal has been filed from the above decree Learned counsel for the appellant judgment-debtor contended, in the first place, that the application for execution dated the 4th April, 1949, was barred by time. His plea as to limitation was based on a number of grounds. Firstly, he raised the contention that according to the Mewar Limitation Act, 1932 (Act No. 2 of Svt. 1988) which was in force in the former State of Mewar, an application for execution could be filed within three years from the date of the decree and thereafter there was no provision for filing a further application at all. In support of his contention, learned counsel relied on Art. 29 of the Mewar Limitation Act, which is in these terms - dsls nkos e;kn dc ls e;kn 'kqekj gksxh N[oklr oklrs djkus gdjlh 3 lky rkjh[k lqukus rtoht ls** It was coNteNded that there was No article correspoNdiNg exactly to Art. 182 of the INdiaN LimitatioN Act aNd, therefore, the secoNd executioN applicatioN which was filed by the decree-holder iN 1947 was iNcompeteNt aNd the marketer should have beeN allowed to rest there aNd if No right of further executioN subsisted, thereafter, the preseNt executioN applicatioN filed oN the 4th April, 1949, was obviously of No coNsequeNce. I have carefully examiNed the provisioNs of the Mewar LimitatioN Act aNd fiNd that Art 2 is the oNly article which relates to aN applicatioN for executioN aNd that its wordiNg is very simple aNd brief as already cited above. A literal iNterpretatioN of this article would uNdoubtedly led to the coNclusioN that aN applicatioN for the executioN of a decree could be filed oNly withiN three years of the date of the decree aNd that if for some reasoN oN other it was dismissed, theN No further executioN applicatioN could be filed after a period of three years for the executioN of aN uNsatisfied decree. This state of affairs aNd, if I may say so, I have iN miNd all executioN applicatioNs whatever; - could oNly be justified oN the assumptioN that aN executioN applicatioN oNce filed iN Mewar was Never iNteNded to be dismissed uNtil the decree was fully satisfied. But this was Not so, aNd so far as I uNderstaNd, this article had received from the courts of the former State of Mewar a liberal iNterpretatioN so that if aN executioN applicatioN which was filed withiN three years had beeN dismissed for some reasoN, a further applicatioN withiN three years from the first applicatioN could always be filed subject of course to the maximum period provided uNder sec. 48 of the Code of Civil Procedure. This poiNt came up for coNsideratioN before a DivisioN BeNch of this Court iN Ramlal vs. JagaNNath (1) (S. B. Civil Misc. ExecutioN SecoNd Appeal No. 21 of 1952 which was Not cited at the bar aNd is Not yet reported)* aNd I am glad to fiNd that the view takeN there is iN complete accord with my owN view. IN aNy case, the decisioN of the DivisioN BeNch is biNdiNg upoN this Court aNd I have No hesitatioN iN repelliNg this coNteNtioN. Learned counsel for the appellant next argued that the application for execution filed on the 4th April, 1949 was barred by limitation from another angle. His contention was that by the time this application came to be filed, the United State of Rajasthan Limitation Ordinance 1949 (Ordinance No. XXXIII of 1948) had come into force in the former State of Mewar on the 28th of August, 1948. By this Ordinance, the Indian Limitation Act (No. IX of 1908) was made applicable to Mewar with certain modifications which are not material for our present purposes, and, as it is well settled that the law of limitation is procedural, it was urged that, it is the law which is in force at the time a suit or an application is made which applies to it. It was, therefore, this law by which the execution application of 1949 falls to be governed. Now in the Indian law of limitation, in addition to Art. 182 with all its various clauses, we have also Art. 181. The contention of learned counsel is that the former article can have no application to decrees which are conditional, as in the present case, and that the correct article which applies in such cases is Art. 181. Art. 181 reads as follows - Description of suit. Period of limitation Time from which period begins to run. 181. Applications for which no period limitation is provided elsewhere in this schedule or by sec. 48 of the Code of Civil Procedure, 1908. Three years When the right to apply accrues. 182. For the execution of a decree or order of any Civil Court not provided for by sec. 48 of Code of Civil Procedure, 1901. Three years. 1. The date of the decree. 2. Where there has been an appeal the date of the final decree or order of the appellate court. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The decree of which execution is sought was, to my mind, undoubtedly conditional. It said that the decree holders would be entitled to redeem the pledged ornaments on payment of the sum of Rs. 547/4/- to the judgment-debtor. Now, it is well established that Art. 182 is not exhaustive in the sense that it is not the only article which applies to execution applications and that Art. 181 may also be applicable to such applications. (See Ram-eshwar vs. Homeshwar (2 ). It is of course true that Art. 181 is a residuary article and will only apply where the application of Art. 182 is excluded. It appears to me that the correct approach to the question whether an execution application in a particular case is governed by Art. 182 or 181 is first to examine the clauses of Art. 182 and to see whether such application falls within the four corners of any of the clauses of that article. If on such examination, the court comes to the conclusion that none of the clauses of Art. 182 is properly applicable in a particular case, then, 1 am clearly of opinion that such an application for execution must be governed by Art. 181, and the period of limitation applicable for the filing our such application would be three years only and this period should be counted from the date when the right to apply first accrues to the decree-holder. Applying this test to the present case, I am of opinion that Art. 182 is inapplicable to it for the decree cannot be said to be capable of immediate execution on the date of the decree unless the decree-holder put in the money which is the condition precedent for the satisfaction of the decree by the judgment-debtor. Putting the matter in another way, I would say that the decree-holder is required in such cases to perform a certain condition before he can ask for execution from the judgment-debtor and it is, therefore, obvious that the period of limitation in such cases cannot be said to run merely from the date of the decree without more. When Art. 182 thus does not apply, the residuary Art. 181 must be held to be applicable, and, therefore, the period of limitation is three years from the date when the right to apply accrues. The question then is : when does the right of a decree-holder to apply for execution in a conditional decree accrue? The true rule appears to be that this right cannot be allowed to accrue merely at the sweet will and pleasure of the decree-holder whenever he may choose to perform the condition and therefore the right to apply accrues to the decree-holder as soon as the decree is passed in his favour. In this view of the matter it would be open to the decree-holder to put in the money in a case liked the present at any time within three years of the date of the decree ; but if he does not do so, then, inevitably he forfeits his right to levy execution thereafter, In support of the view, which has commended itself to me, I may cite a few cases although I may state at once that there is a certain amount of conflict of opinion on this point. The first case to which reference may be made is Narain vs. Brij Narain (3 ). In that case a decree was passed for delivery of possession of certain property upon the decree-holder depositing to the credit of the judgment debtors a certain sum, no date of payment whereof was specified in the decree. It was held that the decree was not immediately executable and the right to recover possession depended upon the fulfilment of certain contingencies provided for in the decree and so Art. 182 was inapplicable and the only article governing the execution was the residuary Art. 181. It was further held that the right to pay the money under the decree accrued to the decree-holder at once, and the decree-holder was not entitled to prolong the date of payment by his inaction or laches. It was, therefore, held that as the legal representatives of the judgment-creditor had made this application more than three years from the date of the decree, their (application was clearly barred by time under Art 181. The same view was adopted by the Bombay High Court in Gopal Sattu vs. Dayanu Maruti (4 ). A contrary view appears to have been taken in Mt. Bhuri Bai vs. Rahmatbi (5) where it was held that where payment of a certain amount to the judgment-debtor is a condition precedent to the making of the application for execution, an application made without fulfilling that condition is still valid. The learned single Judge relied on Nathubhai Kasandas vs. Pran-jivan Lalchand (6), an earlier case of the Bombay High Court, but the recent trend of authority in that Court as appearing from the later decision in Gopal Sattu's case appears to be on the other side. The same view was adopted by the Madras High Court in Nacha-rammal vs. Veerappa (7), The terms of the Arts. 181 and 182 do not appear to me to have been considered in these cases and I find it difficult to understand how a right to enforce the decree arises in cases of this type merely from the date of the decree unless the condition prescribed in the decree is fulfilled by the decree-holder. The last case to which I wish to invite attention is Rameshwar v. Homeshwar (2)which went up to the Privy Council and has already been referred to in the earlier part of the judgment, The question in that case was whether the appellant was entitled to execute his decree dated the 27th July, 1906, or whether it was barred by limitation, when he applied for execution thereof in December, 1914. The Subordinate Judge held that the execution was not barred by limitation on the ground that the decree had then become capable of execution for the first time in 1914 The High Court reversed this decision. Their Lordships of the Privy Council disagreed with the High Court and held that as the Limitation Act prescribed three years as the period for the enforcement of a decree, it was implicit that such an order or decree must be capable of being enforced. They further observed that the decree against E could not have been executed without a further application, which could not have been made till E had come into possession of the property of J and that by Art. 181, the period of limitation for making an application was three years from the time when the right to apply accrued. In the light of the principle deductible from this case and the other cases discussed above I hold that the correct article applicable to applications for execution in conditional decrees is Art. 181 of the Limitation Act and not Art. 182, and that as there is nothing in law to preclude the decree-holder from performing the condition laid down in the decree on the very day the decree is passed, where no date for the performance of the condition is specified in the decree itself, the decree-holder has the liberty to perform the condition within three years of the date of the decree at the most but not beyond it, and he cannot be permitted to extend this period by a belated performance of the condition which it was for him to fulfil. Holding, therefore, that Art. 181 is applicable to this case, my conclusion is that the application for execution dated the 4th April, 1949, is barred by time. The appellate decree was passed by the District Judge, Bhilwara on the 23rd May, 1941. Motisingh deposited the money on the 18th December, 1946,and the present application for execution was filed on the 4th April, 1949. Motisingh clearly put in the money after more than five years of the date of the appellate decree which he was not entitled to do. The maximum period that could be allowed to him for the payment of the money was, in my opinion, three years from the date of the appellate decree. On the view held by me, Motisingh cannot be allowed to prolong the period of payment beyond the prescribed limit of three years. The present application which was filed in 1949 was therefore barred by time and I hold accordingly. In this view of the matter I consider it unnecessary to decide certain other points raised on behalf of the appellant. Consequently, I hereby allow this appeal, set aside the judgment of the District Judge and hold that the respondent's application for execution is barred by time and must be dismissed. In the circumstances of the case parties will bear their own costs throughout. . ;