H VYDIANATHA AIYAR Vs. KSUBRAMANIA PATTER

JUDGEMENT

(1.) The question in this case is whether the execution of the decree in S.A. No. 915 of 1903 of this Court is barred by limitation. The decree which was dated the 30th July 1906 provided that the appellant in the Second Appeal (defendant) should pay the respondent (plaintiff) "Rs. 64-11-4 for his costs in this second appeal, Rs. 78-3-7 for his costs in the memorandum of objections and also his costs in the lower Appellate Court which will be ascertained and taxed by that Court." The costs in the lower Appellate Court were ascertained by that Court on the 1st December 1906. The application for the execution of the whole decree was presented on the 7th August 1909, that is, more than three years from the date of the High Court decree in S.A. No. 915 of 1903, but within three years after the date of the ascertainment of the costs of the lower Appellate Court by that Court. The District Munsif held that the application for execution was barred except with regard to the costs of the lower Appellate Court. The Subordinate Judge modified his order and held that no portion of the decree was barred by limitation.

(2.) It is conceded that so far as it related to the costs of the lower Appellate Court, the execution was not barred as the decree with respect to that portion became complete only within three years of the date of the application. But it is contended by the appellant that the rest of the decree is barred as execution could have been applied for with respect to it immediately after the date of the decree of this Court in Second Appeal. After careful consideration we have come to the conclusion that the decision of the lower Appellate Court is right. Article 182 of the Limitation Act prescribes the rule of limitation with respect to execution of decrees. The starting point 13 mentioned in the third column. Where an appeal is preferred from a decree or a review of judgment or amendment of the decree is applied for, limitation runs with respect to the execution of the whole decree only when the proceedings in appeal, review or amendment come to an end. This shows that the intention; of the legislature is to treat the decree as a whole although only a part, sometimes a very small part, may be the subject of an appeal, or an application for review of judgment or amendment of decree. Different starting points for portions of a decree against the same defendant seem to be contemplated only in the case where the decree directs payments to be made on certain dates, in which case limitation will run for the enforcement of each payment from the date when it is directed by the decree to be made, Although the language of Clauses 2, 3 and 4 might possibly be capable of a different construction, it is now fully established by judicial decisions that there is only a single starting point where there has been an appeal, review or amendment although it might be open in some of the cases falling within their purview for the decree-holder to apply for the execution of a part of the decree before the proceedings in appeal, review or amendment have terminated. See Gopal Chunder Manna v. Gosain Das Kalay (1898) I.L.R., 25 Calc., 594 (F.B.), Krishnama Chariar v. Mangammal (1903) I.L.R., 26 Mad., 91 (F.B.), Abdul Rahiman v. Maidin Saiba (1898) I.L.R., 22 Bom., 500, and Gauri Sahai v. Ashfaq Husain (1907) I.L.R., 29 All., 623. We think that in the present case also the decree must be taken as a whole for deciding the question of limitation. If the direction were that the costs of the lower Appellate Court should be paid when ascertained by the Subordinate Court the case might be different. We are of opinion that the decree must be interpreted as one for the payment of a certain sum of money composed of three items, and one of these items, namely, the costs of the lower Appellate Court, was not ascertained until the 1st December 1906. It was held in Ratnachalam Ayyar v. Venkatrama Ayyar (1906) I.L.R., 29 Mad., 46, that where a decree is for the payment of a sum of money to be thereafter ascertained, limitation would run only from the date of the ascertainment; of the amount, a view which has been enunciated in several other cases; [see also Krishnan v. Nilakantan (1885) I.L.R., 8 Mad., 137]. We are of opinion that the same rule should apply where a portion only of the amount decreed is left to be ascertained in future. It has also been decided that an application for execution of a portion of a decree or against some only of the judgment-debtors would give a fresh starting point for the execution of the whole decree. See Subramanya Chettiar v. Alagappa Chettiar (1907) I.L.R., 30 Mad., 268, and Nepal Chandra Sadookhan v. Amrita Lall Sadhookhan (1889) I.L.R., 26 Calc., 888.

(3.) Mr. Ananthakrishna Aiyar for the appellant relies on two cases in support of his contention. The first of them, Pryag Singh v. Raju Singh (1898) I.L.R., 25 Calc., 203, does not really decide the question and need not be further considered. The other decision is a judgment of Subrahmania Ayyar and Boddam, JJ., in C.M.A. No. 74 of 1903. The decree in that case provided for the payment of costs and mesne profits, the mesne profits being left to be ascertained subsequently in execution. The application for execution was presented more than three years after the decree but within that period after the ascertainment of the mesne profits. The learned Judges held that the application was barred with respect to the costs but not with regard to the mesne profits. The judgment with reference to execution for the costs is extremely brief and no reasons are given in support of it. With all deference to the learned Judges we are unable to follow the decision. The policy of the Limitation Act in the case of execution of decrees is in our opinion to lay down a simple rule and to treat the decree as a whole except when the: decree itself directs that different portions of the relief granted are to be rendered by the defendant to the decree-holder at different times. Our conclusion is in accordance with the decision of the Privy Council in Haji Ashfaq Husain v. Lala Gauri Sahai (1911) 13 Calc. L.J., 351. We must therefore dismiss the appeal with costs.