ORDER Sen and Weir, JJ.
1. This is an appeal in execution proceedings. The decree of which execution is sought was pronounced on 24th February 1916 against the respondent and in favour of the appellant company. On 6th August 1979, the decree was attached by a certain Miss Chatterji in execution of a decree which she had obtained against the appellant company; and on 23rd July 1918 the decree was on her request transferred to the Collector of the district in which the respondent resides for execution under Sch. 3, Civil P.C. On 9th December 1917, before decree was so transferred, the appellant company assigned the decree to one Raghunath Prasad, who on 13th February 1919 applied to the Court which pronounced the decree to have his name recorded as the owner of the decree and to have personal execution against the respondent.
2. This application for personal execution was rejected on 21th February 1919, and on 24th February 1921 Ragunath prasad retransferred the decree to the appellant company. Meanwhile on 21st January 1919 the appellant company had deposited the process fee for execution of the decree by the Collector; but for some reason of which we are not informed the decree was not executed by the Collector, although the property of the respondent was advertised for sale; and on 23rd April 1920 the Collector returned the decree to the civil Court and the application for execution was struck off. The appellant company again applied for execution on 10th February 1922, and notice was issued under Order 21, Rule 22, Civil P.C., but on 18th March of the same year, this application was struck off for default. This application out of which this appeal arises was made by the appellant company on 6th January 1925. The lower appellate Court held that the decree was barred by limitation as more than three years had elapsed between the date, namely 23rd July 1918, when Miss Chatterjee applied for execution of it and the 10th February 1922 when the appellant company again applied for execution.
3. On behalf of the appellant company two points have been argued: (1) that the application by Raghunath Prasad was sufficient by Raghunath Prasad was sufficient to keep the decree alive although the lower appellate Court has found as a fact that this application was "far from being bona fide," and "was a colourable application filed simple to show that he was the assignee of the decree." (2) That in calculating the period of limitation under Article 182, Lim. Act, the period during which the decree was with Collector for execution should be excluded: see Rule 11(3), Sch. 3, Civil P.C. We think that this contention must prevail. Under the words of Rule 11(3), Sch. 3:
the same period (i.e. the period mentioned in Clause (1) of the same rule) shall be excluded in calculating the period of limitation applicable to the execution of any decree affected by the provisions of this paragraph in respect of any remedy of which the decree-holder has been temporarily deprived.
4. The period mentioned in this clause is thus expressed in Clause (1):
So long as the Collector can exercise or perform in respect of the judgment-debtor's immovable property or any part thereof any of the powers or duties conferred or imposed on him by paras. 1-10 of the schedule....
5. We think that as long as the decree remained with the Collector for execution, the Collector could exercise the powers conferred on him by Rule 1 of the Schedule; and in fact he did so to a certain extent by advertising the property for sale. We therefore think that the period during which the decree was with the Collector for execution should be excluded, and that therefore the appellant company's application for execution on 10th February 1922 was within time. We express no opinion on this point whether the application made by Raghunath Prasad on 13th February 1919 would or would not have been sufficient to keep the decree alive. The reason given by the learned Judge for saying that it was merely a colourable application is that he i.e., Raghunath Prasad was told by the civil Court to which he had applied for execution that be could not do so as long as the decree was with the Collector for execution. Counsel for the respondent is, therefore, on the horns of a dilemma. If the period during which the decree was with the Collector is not to be excluded in reckoning the period of limitation allowed by Article 182 then Raghunath Prasad was entitled to apply for execution and the reason given for refusing his application was wrong: see Rule 11, Clause (2), Sch. 3, Civil P.C., and therefore the reason given by the lower appellate Court for holding that Raghunath Prasad's application was not bona fide falls to the ground.
6. On the other hand, if the reason given for holding that Raghunath Prasad's application was not bona fide is right then the period during which the decree was with the Collector for execution must be excluded in calculating the period of limitation under Article 182, of the Schedule the Lim. Act. We would, therefore, have allowed this appeal with costs, if counsel for the respondent had not strenuously contended on the authority of Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95, that we ought to remand the case to the lower appellate Court for a finding on the question, whether the application made by the appellant company on 10th February 1922, and the proceedings taken in consequence of it, were made and taken with a bona fide intention of executing the decree, if it was reasonably possible to do so. After considering all the cases cited in the judgment in Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95, we respectfully differ with the conclusion at which the learned Judges arrived in that case; and, as the question is of general importance, and has been raised before one of us several times, we think that we ought to ask the Chief Justice to refer the question which we shall formulate to a Full Bench.
7. It would not serve any useful purpose for us to attempt to review elaborately all the cases which were cited in the judgment in Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95; but we may say that in our opinion the expression, "bona fide," when used with reference to the proceedings taken by a decree-holder to execute a decree, is used, not with reference to his intention to obtain execution, if possible; but with reference to his belief that he is applying to a proper Court in a proper manner and is asking for execution against property which he believes could be sold in execution of his decree. This appears to have been the case in Roy Dhunpat Singh v. Mudhomotee Dabia 11 Beng. L.R. 23, which came before their lordships of the Privy Council and also in Hira Lal v. Budri Das [1879] 2 All. 792. In the third case which came before their Lordships: Mungul Prashad Dikshit v. Girjakant Lahiri [1882] 8 Cal. 51, their Lordships observed at p. 62 of the report that there was not any finding of either of the Courts below that the several proceedings were not bona fide for the purpose of enforcing the decree or of keeping it in force. We emphasize the last words of this passage, which is also cited in Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95. These words seem to show that their Lordships contemplated the possibility of a case in which proceedings might be taken for the purpose of keeping a decree alive, as distinct from proceedings for the purpose of obtaining execution of the decree; whereas, as we understand the decision of the Court in Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95, execution proceedings will not be sufficient to keep a decree alive, unless they are taken and pursued with a genuine intention of obtaining execution of the decree, if it is reasonably possible to do so.
8. We might also point out that the argument, that the legislature could not have intended that an indefinite period could be added to the life of a decree by the decree-holder taking colourable steps to obtain execution when he only wanted to secure a further period, loses much, if not all, of its force in consequence of the provisions of Section 48, Civil P.C., by which, except in the case of force or fraud on the part of a judgment-debtor, an order for execution cannot be made after the expiration of 12 years from the date of the decree. It was this fear that the life of a decree might be indefinitely extended which led to the doctrine, which at one time prevailed in the Calcutta High Court, that a decree-holder was bound to show that he intended bona fide to execute a decree and that if ha could not prove this, any steps taken by him were ineffectual to save limitation. That doctrine was emphatically though reluctantly repudiated by a Full Bench of that Court in Eshan Chundra Bose v. Pran Nath Nag 22 W.R. 512. The case had been referred to a Full Bench by Jackson, J., who was in favour of upholding the doctrine of bona fides when applied to proceedings in execution; and, as it has been suggested in the judgment in Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95 that particular phrases used by Couch, C.J., should not be treated as governing a question not directly considered, we wish to quote the concluding passage in the judgment of Jackson, J., which shows quite clearly what that Court believed that it was deciding, and what it intended to decide. The passage runs as follows:
I still think, and I think more strongly than ever, that the consequences to which I referred in my remarks, of removing absolutely all "checks" to applications to execute decrees are likely to follow but at the same time, I also think it is better that those consequences should be exposed by actual examples, and brought to notice in judgments of the Courts and the remedy left to the legislature which can properly and effectually deal with them, than that the Courts should by a forced construction endeavour to mitigate by their own authority the action and rigour of the law.
9. The hope expressed by Jackson, J., that the evil which he feared would be remedied by the legislature, has been fulfilled by Section 48, Civil P.C., and we agree with the judgment in that case. We, therefore, direct that the papers of this case should be sent to the Acting Chief Justice with the request that he will constitute a Full Bench to determine the following question;
If a decree-holder makes any application or takes any step mentioned in Col. 3, Article 182, Lira. Act, will such step be ineffectual to keep his decree alive and to save limitation, unless he can satisfy the Court that he took such step or instituted such proceedings with a genuine intention of obtaining execution of his decree, if reasonably possible and that he did not abandon such proceedings, except upon a genuine belief that it would not be reasonably possible to obtain execution.
Sulaiman, J.
10. The facts of this case are fully mentioned in the order of reference. It is not necessary to recite them.
11. In the course of argument besides the point referred other points have also been raised, for instance that if an order for execution has once been passed on an application for execution without objection as to its being time barred it would not save limitation for purposes of a subsequent application. It has also been suggested that inasmuch as a notice was issued under Order 21, Rule 22 on 1st February 1922, the case was covered by Article 182, Sub-clause 6(6) and there was no necessity whatsoever to enquire into the bona fides of the application for execution. It has been further sought to be argued that steps taken by an attaching creditor to execute her decree would not justify the exclusion of time for the purposes of this application. These are matters which have not been referred to us and I do not wish to be understood that I am expressing any opinion on any one of them.
12. The purport of the question referred to us stated briefly is whether an application for execution of a decree or taking any steps in aid of it would be ineffectual without a bona fide intention in the mind of the decree-holder. That is to say whether for purposes of Article 182, Lim. Act, it is sufficient to show that an application was made in accordance with law to the proper Court for execution or to take some steps in aid of execution, or whether it is further necessary to show that such application had been made with a bona fide intention to execute the decree or to take such step, and not merely to keep it alive.
13. Section 20, Act 14 of 1859, provided that no process of execution shall issue to enforce any judgment, decree or order unless some proceeding shall have been taken to enforce it or to keep the same in force within three years next preceding the application for execution. Under Section 14 the time spent in prosecuting any suit bona fide and with due diligence which failed from defect of jurisdiction or other cause was to be excluded but it did not apply to a previous application for execution. There was accordingly no express provision in the Act under which the time taken in prosecuting an application for execution in good faith in a Court which was not competent to grant the relief could be excluded except Section 20. Their Lordships of the Privy Council laid down in several cases that the principle of Section 14 applied to the application for execution and that good faith would help the decree-holder even in an application for execution under Section 20.
14. In Roy Dhunpat Singh v. Mudhomotee Dabia 11 Beng. L.R. 23 it had been contended that the petition was to obtain execution of a sum of money which it was not possible that the execution could reach and could therefore not be held to be one to keep the judgment in force. Their Lordships thought that those circumstances really affected only the bona fides of the proceeding, and came to the conclusion that there had been a desire to obtain execution and that the proceeding though bona fide had failed in consequence of a mistake, and the mere fact that it was in the end abortive did not take from it the character of a proceeding to enforce the decree.
15. In Hira Lal v. Budri Das [1879] 2 All. 792 the decree of the District Judge had been sent to the Subordinate Judge to be executed and the Subordinate Judge had struck the execution case off the file. Subsequent proceedings were taken from time to time by the decree-holder in the Court of the Subordinate Judge to enforce the decree. The High Court held that the Subordinate Judge had power merely to dispose of the application transferred to him and not to entertain the subsequent application, but, however, stated that there was no reason to think that the appellants had not exerted themselves bona fide to obtain their dues. On these facts their Lordships of the Privy Council held that, even if the Subordinate Judge had no jurisdiction, the proceedings taken in his Court were sufficient to prevent the operation of the statute of limitation and applied the principle underlying Section 14 to the application under Section 20.
16. The case of Mungul Prasad Dichit v. Girijakant Lahiri [1882] 8 Cal. 51 was also a case governed by Act 14 of 1859 inasmuch as the suit out of which the execution proceeding arose had been instituted when that Act was in force. It was scarcely contended that application was barred if the case was governed by the former Act. Their Lordships did remark that there was no finding of either of the Courts below that the several proceedings taken were not bona fide for the purpose of enforcing the decree or of keeping it in force.
17. These cases were under the Act off 1859 and can further be distinguished on facts. But they were undoubtedly taken to be authority for the proposition that the bona fides of a previous application for execution was a matter to be enquired into. A number of cases in Calcutta, which it is not necessary to enumerate, followed this line.
18. Then came Act 9 of 1871 in which Article 167 altered the phraseology and 3 years were to be counted from:
the date of applying to the Court to enforce, or keep in force, the decree or order.
19. The starting point of application was not the time when a proceeding shall have been taken but the date of applying. The former expression connotes the idea of completion whereas the latter refers to an isolated act. The question naturally arose whether the change in the phraseology was the result of an intention of the legislature to alter the law. The Article itself allowed time from an application to keep the decree in force even though it was not one for enforcing it. The matter came up before a Full Bench of the Calcutta High Court in the case of Eshan Chandra Bose v. Prannath Nag 22 W.R. 512. It was referred to the Full Bench because of a categorical expression of opinion expressed in Rohinee Nundan Mitter v. Bhagwan Chunder Roy 22 W.R. 154 that there was no necessity to enquire whether the proceedings were taken for the purpose of enforcing the decree or were merely colourable for the purpose of keeping the decree alive. It is not necessary to examine the reasoning of the learned Chief Justice or Jackson, J. in the Full Bench case. But there can be no doubt that it was unanimously held that all that was necessary for a decree-holder was to take care that the application was within 3 years from the date of applying to enforce the decree or to keep it in force. This was followed by Act 25 of 1877 Article 179 introduced a new phraseology and time was to run from:
the date of applying in accordance with law to the proper Court for execution or to take some steps in aid of execution of the decree or order.
20. I now come to the cases of this Court in which the point arose either directly or indirectly. In Mahtab Kunwar v. Sham Sunder Lal [1888] A.W.N. 272, Mahmood, J. was inclined to hold that consistently with the ratio decidendi adopted in the earlier rulings an application made ostensibly for executing the decree, not shown to have been made as a bona fide step, indicated not only by the omission to deposit the talbana fees but also by the express statement of the pleader withdrawing the application, was not a step in aid of execution. He, however, did not decide this point in that case. The case of Chattar v. Nawal Singh [1889] 12 All. 64 was a case where the Court was not competent to do the thing asked for. It is not directly in point. In Halima Bibi v. Nishan Bibi [1890] A.W.N. 77 Tyrrell. J., repelled the judgment-debtor's contention that an application for execution was a bad application because the previous motions displayed no bona fides or industry or diligence. He pointed out that the current of decisions of this Court for years had been to consider only whether the application was made in conformity with the procedure laid down and whether it was made to the proper Court, and not to import considerations derived from the subsequent conduct on the part of the decree-holder or of the Court. He pointed out that Mahmood, J., in the earlier case had declined to decide the point. In Debi Das v. Umrao Singh [1891] A.W.N. 148 when the question again same up before Mahmood J., and the Full Bench judgment of the Calcutta High Court and the judgment of Tyrrell, J., were cited before him he held that the questions of bona fides had no application to the case. In Mangal Sen v. Baldeo Prasad [1892] A.W.N. 70 the application for execution was not accompanied with a list of the properties sought to be attached and the following statement was entered in it:
After notification by means of attachment of the immovable property of which a list will hereafter be filed the decretal money may be realized. At present for the purpose of saving limitation this application is made owing to the defendant having become insolvent.
21. The learned Judge held that the application was not in accordance with law and cited several rulings in support of the view. From the very nature of the entries made by the decree-holder in the application" he concluded that the application was a nominal transaction and a fictitious ceremony for the purposes, as the application expressly stated, only of saving limitation. It seems to me that the cases of Halima Bibi [1890] A.W.N. 77 and Debi Das [1891] A.W.N. 148 are directly in point and lay down that the question of bona fides of the application is not to be gone into. The other two cases decided by Mahmood, J. are cases where the application was possibly not in accordance with law inasmuch as there was an admission on behalf of the decree-holder that the only purpose of it was to gain time.
22. Although there are passages in the judgments of various learned Judges which contain the word "bona fide" with reference to applications for execution, there is not a single case which has been brought to our notice where an application for execution although made within three years of a previous application was dismissed as being time barred on the ground that the previous application though made to the proper Court and in accordance with law had not been made in good faith or was mala fide. The mere use of the word "bona fides" in judgments might either be due to loose speaking or to a continuance of the phraseology used when the old law was in force. At best, it can be taken to imply that the learned Judge was holding that a bona fide application was not time barred and did not want to commit himself to the view that a mala fide application would also not have been time barred. "A case is only an authority for what it actually decides. Quinn v. Leathem [1901] A.C. 495(at p. 506) None of these cases can therefore be taken to be an authoritative pronouncement in support of the contention that an application for execution although apparently valid was bad in law because the secret intention of the decree-holder was not to pursue it, such intention being gathered from his subsequent conduct.
23. Such was the state of the rulings when the present Act (Act 9 of 1908) was passed. Article 182 of the new Act, reproduces the exact phraseology of Article 179 of the Act of 1877 so far as the point before us is concerned. The legislature is presumed to know the current of the judicial pronouncements. When the language of a particular section of a statute has been interpreted in a particular way by the Courts and that language has been reproduced by the legislature in the new Act, we are entitled to assume that the judicial interpretation has been accepted, Jay v. Johnston [1893] 1 Q.B. 25. Between 1877 and 1908 there was no case which had expressly held that a mala fide application would be ineffectual. There were undoubtedly cases which had held that the question of mala fides did not arise. Even therefore if the language of the article be in any way ambiguous I would have no hesitation in saying that the view which prevailed previously should be adhered to.
24. Tyrrell, J. remarked in 1890 that the practice of this Court for years had been on the line suggested by him. I can say with confidence that the same practice continued till 1924. The case has had several hearings before several Benches and the parties are represented by experienced counsel. We also have tried to look up the various rulings, but no one had discovered any case up to 1924 which would make an enquiry into the bona fides of an application for execution necessary, even when it is made to the proper Court and is for all appearances in accordance with law. The first case in which stress was laid on the bona fides of the application is that of Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95. The full judgment is reported in 24 A.L.J. p. 137. That case has been sufficiently explained by my learned brother Banerji, J., who was a member of the Bench which decided it.
25. When it was shown that the relief asked for in the previous application, viz., to attach and sell property not situated within the jurisdiction of the Munsif, was such as the Court could not grant it, the application was not in accordance with law and the case could have been disposed of on that point alone. Whether in such a special case the question of bona fides or mala fides of the application arises is not a point before us and I need not express any opinion on it. But there are no doubt certain general principles laid down in the judgment and certain general observations made which if taken literally would indicate a wider scope of the pronouncements. This is further confirmed by the elaborate examination of the previous authorities and the quotation of passages where the word 'bona fides' occurs as well as the attempt to distinguish the Full Bench case of Eshan Chandra Bose 22 W.R. 512. After considering the authorities conclusion is noted at p. 145 in the following words:
We think that it is clear from the cases later in date that we have quoted, that the principle has been frequently recognized that the bona fides or mala fides of the earlier application is an important ingredient in determining whether that application is effective to save limitation for the later application; though the bona fides or mala fides of the later application cannot be judged at the time that it is presented from anything that has gone before and, therefore, cannot at the time of presentation be entered into.
26. In my opinion if the previous application for execution is made to the proper Court and is in accordance with law and in the prescribed form and in that way fulfills the conditions required by the Civil Procedure Code, it is not proper for the execution Court to hold an enquiry as to the intention with which that application might have been filed and to disregard it after satisfying itself that the subsequent conduct of the decree-holder shows that he had no serious intention of prosecuting it. The case where the application itself says or the decree-holder admits that he does not in reality want to execute the decree but merely files the application for the purpose of gaining time may be one in which the application is not in accordance with law.
27. The case of Ram Bahadur Singh v. Rahat Ali Khan A.I.R. 1926 All. 376 decided by Dalal, J., can also be treated as one where the application was not in accordance with law inasmuch as the particulars were wrongly entered. It has been brought to our notice that the Oudh Chief Court in Ruqaya Bibi v. Prag Tewari A.I.R. 1928 Oudh 337 has dissented from the view expressed in Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95.
28. My answer to the question referred to is in the negative.
Banerji, J.
29. The question which has been referred to a Full Bench is as follows:
If a decree-holder makes any application or takes any step mentioned in Col. 3, Article 182, Lim. Act, will such step be ineffectual to keep his decree alive and to save limitation, unless he can satisfy the Court that he took such step or instituted such proceeding with a genuine intention of obtaining execution of his decree, if reasonably possible, and that he did not abandon such proceedings, except upon a genuine belief that it would not be reasonably possible to obtain execution.
30. The Kayastha Trading and Banking Corporation of Gorakhpur Limited obtained a decree for money against Sita Ram Dubey on 14th February 1916. On 16th August 1927 Miss Chatterji, who had a decree against the Kayastha Trading Company, attached the decree against Sita Ram, and on 23rd July 1918 upon an application by her to execute the decree in favour of the Kayastha Company, it was transferred to the Collector of the district in which the respondent resided for execution of it under the provisions of Sch. 3, Civil P.C. Before the decree was transferred the company assigned the decree to one Raghunath Prasad, who applied to the Court which had passed the decree to have his name recorded as the transferee from the decree-holder and to obtain personal execution against Sita Ram respondent. This application was presented on 13th February 1919 and on 24th February 1919 the Court rejected the application of Raghunath Prasad. On 14th February 1921 Raghunath Prasad retransferred the decree to the company. On 21st January 1919 the company had deposited process fee for execution of the decree by the Collector, but it appears that the decree was not executed by the Collector, who on 23rd April 1920 returned the decree to the civil Court and the application for execution was struck off. The company applied for execution of the decree on 10th January 1922, and a notice was duly issued under the provisions of Order 21, Rule 22, Civil P.C., by an order of 7th February 1922. It appears, however, that on 18th March 1922 the application for execution was struck off for default in payment of the costs of attachment.
31. On 6th January 1925, the appellant company presented a fresh application for execution of the decree. Objections were taken by the judgment-debtor that the decree was time barred. The Court of first instance repelled the contention of the judgment-debtor, but the lower appellate Court held that the decree was barred by limitation on the ground that more than three years had elapsed between the date of the application for execution by Miss Chatterji (viz., 23rd July 1918) and on 10th January 1922 when the appellant company again applied for execution. The appellant company came in appeal before this Court and the case was heard by a Bench of two Judges. It was contended before that Bench that the application made by Raghunath Prasad was sufficient to keep the decree alive, though the Court below had held that this application was not bona fide and was a colourable application filed simply to show that Raghunath Prasad was the assignee of the decree. It was further contended by the appellant that in calculating the period of limitation under Article 182, Limitation Act, the period during which the decree was with the Collector for execution should be excluded. The Bench hearing the appeal came to the conclusion that the period during which the decree was with the Collector should be excluded, and that therefore the appellant's application for execution on 10th January 1922 was within time.
32. The advocate for the respondent contended on the authority of the case of Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95 that the case should be remanded to the lower appellate Court for findings on the question whether the application made by the appellant company on 10th January 1922 was a bona fide application and also the proceedings taken in consequence thereof were made and taken with the bona fide intention of executing the decree if that was reasonably possible to do so. The Bench differing from the conclusion that was arrived at in the case of Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95 referred the question I have set out above for determination by a Full Bench.
33. In considering the question of law that arises in each case one has to ascertain the facts and without the ascertainment of the facts it is not possible in every case to lay down general propositions of law. I may refer to the observations of Lord Halsbury in Quinn v. Leathem [1901] A.C. 495(at p. 506):
Now, before discussing the case of Allen v. Flood [1898J A.C. 1 and what was decided therein there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides.
34. The facts of the case of Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95 are to be found in detail in the judgment of this Court at p. 137 of 24 A.L.J. They are that Sheo Prasad obtained a simple money decree against Ishri Prasad, husband of the respondent, in the Court of the Munsif of East Budaun on 9th March 1915. On 4th March 1921 Sheo Prasad presented a second application for execution. The relief asked for in that application was that certain property be attached and brought to sale. There was a reference about the heirs of the deceased judgment-debtor, but it appears that there had been a previous application to bring the heirs on the record. On 19th April 1921 the attention of the decree-holder was drawn by an office report that all the property of which attachment and sale was sought was outside the jurisdiction of the Munsif of East Budaun, and the decree-holder was directed by the Court to explain how the Court of the Munsif of East Budaun had any power to proceed against the property entered in the application for execution. On 29th April 1921 the decree-holder not having furnished an explanation, the application was dismissed and on that date the decree-holder took back all the process fee that he had deposited in Court.
35. On 12th January 1923 Sheo Prasad applied for execution of the decree by sale of the property within the jurisdiction of the Munsif of East Budaun. The Munsif dismissed the application holding that it was barred by limitation, as the previous application of 14th January 1921 was not in accordance with law as the property sought to be sold was outside the jurisdiction of the Court. In appeal the Subordinate Judge held that the application was made to the proper Court but was not in accordance with law and did not Save limitation.
36. The decree-holder appealed to this Court and it was contended by the counsel for the appellant in that case that the application of 4th March 1921 was made to a proper Court and that the fact that the property specified as liable to attachment was outside the jurisdiction of the Court did not make the application one not in accordance with law. I may mention that had the last application been filed in Court a few days before it was actually filed or if the time which had been spent by the decree-holder in prosecuting his application of 4th March 1921 could have been excluded, there could be no question of the right of Sheo Prasad to execute the decree which had been passed against Sheo Prasad. The only point which was for decision in that case was whether the proceedings on the application of 4th March 1921 constituted an application in accordance with law to the proper Court for execution or to take some step-in-aid of execution. It was decided that the application of 4th March was not an application in accordance with law, and, therefore, did not save imitation. The time taken by Sheo Prasad in executing the decree from 4th March 1921 to 19th April 1921 could not be excluded so as to bring the application of 12th January 1923 within time. At p. 140 of 24 A.L.J. will be found the following passage:
At an early stage of the case counsel for the appellant was asked whether, if it were to be held in the circumstances that the application was not made with any bona fide intention of proceedings to execution but merely with the intention of saving limitation, it could rightly be held to be "an application for execution" or "a step-in-aid of execution.
37. This question naturally arose upon the facts of that particular case and in considering the question of the action of the decree-holder being in good faith or not all the cases on the subject were referred to. At p. 146 after reviewing the facts the conclusion arrived at was that under these circumstances it is impossible to hold that the application of 4th March 1921 was a bona fide application with the intention of obtaining execution:
It was merely a colourable application intended to save limitation and with that intention only. Such applications made only with the intention of keeping the decree alive, have it may further be noted, since 1877 been dropped out of the appropriate Article of the Limitation Acts.
38. It was further held as to the second point that the application of 4th March 1921 was not in accordance with law in that it asked the Court to do something which it was not competent to do. As I have already pointed out the facts of the case must be borne in mind before it can be said that what was held in Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95 is applicable to the facts of the present case.
39. In the present case the application for execution dated 10th January 1922 fulfilled the requirements of Order 21, Rule 10, Civil P.C., and was entertained by the Court on 7th February 1922. Upon this application which was accepted by the Court as a good application notice was directed to be issued to the respondent under Order 21, Rule 22, and as a matter of fact a notice was issued. It could, therefore, not be said that the application was not an application in accordance with law to the proper Court, and under Clause (6), Lim. Act of 1908, the time from which period begins to run is the date of issue of notice to the person against whom execution is applied for.
40. I am, therefore, of opinion that in the present case the answer to the reference to the Full Bench must be in the negative.
King, J.
41. The facts have been fully stated in the foregoing judgments of my learned brothers.
42. The question was whether an application made on 6th January 1925, for the execution of a decree, was barred by limitation. The decision depended upon the question whether a previous application made on 10th January 1922, to execute the same decree, was effectual to save limitation. The Division Bench which heard the appeal held that the previous application was within time, and held (not expressly but by implication) that it had been made in accordance with law and to the proper Court. Under Clause 5, Col 3, Article 182 Sch 1, Lim. Act 1908 the previous application was prima facie effectual to save limitation. The learned Judges were prepared to decide accordingly, but they doubted whether they were justified in doing so in view of the ruling in Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95, without first coming to a further finding, viz., that the previous application had been made with the bona fide intention of obtaining execution of the decree, and not merely for the purpose of saving limitation.
43. So the question for our consideration is whether an application which purports to be an application for the execution of a decree, and which is made in accordance with law to the proper Court, is ineffectual to save limitation unless the decree-holder satisfies the Court that he prosecuted the application with due diligence, and thus proves that he made the application with the genuine intention of obtaining execution of the decree. The answer depends upon the interpretation of Clause 5, Article 182. This gives a period of three years for an application for the execution of a decree from:
the date of applying in accordance with law to the proper Court for execution.... of the decree.
44. It appears, therefore, that three conditions must be fulfilled in order to attract the provisions of this Clause: (1) an application must be made for the execution of the decree; (2) in accordance with law; (3) to the proper Court.
45. In the present case conditions 2 and 3 were fulfilled and there is no controversy about them. The application was made to the proper Court. It was also made in accordance with law, and was accepted as such by the Court, which actually issued a notice to the judgment-debtor under Order 21, Rule 22, on 7th February 1922. I may here remark, in passing, that in my opinion the issue of this notice might well have been treated as decisive of the question of limitation, since under Clause 6, Article 182, a period of three years began to run from the date of issue of this notice. This point, however, was not considered by the Courts below or by the Bench which made this reference.
46. Now remains the question what is required to fulfil the first condition, or in other words what is meant by "an application for the execution of a decree." I accept the view expressed by the learned Judges in the ruling cited that the words "for execution" mean "for the purpose of obtaining execution." The application must no doubt purport to be for the purpose of obtaining execution, but I think the applicant's intention or purpose should be ascertained solely from the terms of his application and his conduct at the time of making the application. If the application purports to be for the execution of the decree and is in accordance with law, and is accompanied by such process fees as may be required-in short if the applicant does everything necessary to enable the Court to issue its process for the execution of the decree-then in my opinion the application is "an application for the execution of the decree" within the meaning of Clause 5. I hold that the applicant's "genuine intention" and his subsequent conduct are alike immaterial. The legislature does not compel the Court to investigate the motive which prompted the decree-holder to make the application. It may be that he had no hope of obtaining satisfaction of his decree, and made his application with a view to harass the judgment-debtor, or to save limitation. It would be difficult in my opinion to ascertain his motive or "genuine intention."
47. Fortunately the Courts are not compelled to make the attempt. I am unable to read the words "for execution of the decree" as meaning more than "purporting to be for the purpose of obtaining execution of the decree." I see no justification for reading into the words any requirements of good faith or "genuine intention" on the part of the applicant. That would be putting a very strained interpretation upon simple words.
48. My view derives support from an examination of the language used to describe other suits, appeals or applications in Sch. 1, Lim. Act. They are nearly all described as being "for" something, e.g. "for money payable," "for possession," "for compensation," "for leave to appeal" and so forth. Now in every case the description of suits for the purpose of limitation will be determined by an examination of the plaint, i.e., by the alleged facts and cause of action and the reliefs sought. The Courts are never called upon to consider (for the purpose of deciding which article of the schedule is applicable) whether the suit was instituted in good faith and whether the plaintiff really wanted to get the relief claimed. In short, a suit is taken to be what it purports to be.
49. For instance, a suit is instituted purporting to be a suit for specific performance of a contract. The plaintiff may institute it in bad faith without really expecting or desiring to obtain the relief claimed. His real intention may be to compel the defendant to pay up a time barred debt as the price of getting the suit withdrawn. Nevertheless, if the suit is framed as one for specific performance of contract it will be held to be a suit of that description within the meaning of Article 113. The plaintiff's good faith or "genuine intention" are quite immaterial. I conclude, therefore, that (for the purposes of Sch. 1, Limitation Act) a suit or appeal or application is to be taken to be what it purports to be, and I see no reason why an application for execution of a decree should form an exception to the general rule.
50. It should be noted also that where "good faith" and "due diligence" are material factors, as in Section 14, then we find express provisions to this effect. On this ground also I think it is wrong to read into 01. 5, Article 182, requirements of good faith and due diligence which have been omitted by the legislature.
51. The case law on this point has been exhaustively reviewed and discussed by my learned brothers and I feel it unnecessary to comment upon the cases in detail, I would, however, lay stress upon one salient point that emerges from the discussion. The clause which we are considering was enacted in its present form in Article 179, Lim. Act of 1877. Ever since that date the language of the clause has remained unchanged, so its meaning has been the subject of judicial interpretation for over 50 years. Not a single case has been cited before us in which it has been held, upon an interpretation of this clause that an application for execution made in accordance with law to the proper Court was ineffectual to save limitation, upon the ground that it was not made with a bona fide intention of obtaining execution. It may fairly be argued therefore that the trend of a long series of judicial decisions is in accordance, and not in conflict, with the view that I take of the interpretation of the clause, viz, that the applicant's "good faith" and "genuine intention" in making an application for the execution of a decree are immaterial.
52. I answer the question referred to us in the negative.
Sen, J.
53. The point referred to the Full Bench arises out of certain execution proceeding initiated by the Kayastha Co. Ltd. in liquidation through Babu Narain Prasad Asthana, liquidator. The issue referred to is as follows:
If a decree-holder makes any application or takes any step mentioned in column (SIC), Article 132, Lim. Act, will such step be ineffectual to keep his decree alive and to save limitation, unless he can satisfy the Court that he took such step or instituted such proceedings with a genuine intention of obtaining execution of his decree, if reasonably possible, and that he did not abandon such proceedings, except upon a genuine belief that it would not be reasonably possible to obtain execution?
54. The Kayastha Co. Ltd. of Gorakhpur obtained a simple money decree against the respondent Pandit Sita Ram Dubey, on 24th February 1916. One Miss Chatterji in execution of her simple money decree against the Kayastha Co. Ltd. aforesaid attached this decree on 6th August 1917.
55. The first application for execution was made by the attaching creditor, on 23rd July 1918, in which she prayed for attachment and sale of some ancestral revenue-paying property belonging to Sita Ram Dubey. The talbana or process fee was duly deposited, and subsequently the execution of the decree was transferred to the Collector by order dated 10th December 1918. These proceedings proved infructuous and the case was sent back to the civil Court on 23rd April 1920.
56. During the continuance of the attachment at the instance of Miss Chatterji, the Kayastha Co. Ltd. assigned the decree to one Raghunath Prasad on 9th December 1917.
57. The second application for execution was made by Raghunath Prasad on 13th February 1919, while, as yet, the execution proceedings were pending before the Collector. In this application, Raghunath Prasad prayed for the substitution of his name in place of the original decree-holders and for the enforcement of the decree by the arrest of the judgment-debtor. This application was dismissed on 24th February 1919 in default of prosecution.
58. On 24th October 1921. Raghunath Prasad reconveyed the decree to the plaintiff firm.
59. The third application for execution was made by the Kayastha Co. Ltd. on 10th January 1922. This application was dismissed for default of prosecution on 18th March 1922.
60. The fourth and the last application for execution was made on 6th January 1925. The application prayed for the issue of the usual notice to the judgment-debtor and for the execution of the decree by attachment and sale of the property given in the inventory, the inventory to be filed hereafter.
61. The judgment-debtor resisted the application on the ground that the decree was time barred, and that no application had, in fact, been made on behalf of the decree-holder for execution of the decree on 13th February 1919. These objections, however, were traversed by the decree-holder by his application dated 21st August 1926.
62. The objections of the judgment-debtor were repelled by the primary Court and the execution was directed to proceed. The judgment-debtor appealed on the ground that the application for execution was time barred and that a limitation was not saved either by the fact of Miss Chatterji depositing talbana on 21st January 1919 or by the subsequent application for execution dated 10th January 1922.
63. The appeal was heard by the Second Additional Subordinate Judge of Gorakhpur, who reversed the decision of the trial Court and dismissed the application for execution as barred by time. He held that the payment of process fee, was not a step in aid of execution, that the application of Raghunath Prasad dated 13th February 1919 was not a step in aid of execution inasmuch as it was not ''a bona fide application for putting the decree in execution" and was no more than:
a colourable in a very thinly disguised pretence of a desire to obtain execution when he really did not want execution at all.
64. These words appear to have been adopted from a judgment of this Court, which I shall have to refer to later on. He also held that the sale of the decree to Raghunath Prasad was not a bona fide transaction and that the original decree having been transferred to the Collector for execution, the civil Court was not competent to entertain the application as the said Court had been asked to do something which it was not competent to do. The learned Additional Subordinate Judge wound up his judgment with the observation that the application of 10th January 1922, which was preceded by the application of 23rd July 1918 was clearly preferred after three years and as the payment of talbana and the application of Raghunath Prasad of 13th February 1919 are not considered to be steps-in-aid of execution, the decree is barred by time.
65. The view of the learned Subordinate Judge was that the application for execution dated 13th February 1919 should be brushed aside because it was an application made to a Court which could not entertain it, that it had been made mala fide merely to keep the decree alive and not with the bona fide intention of obtaining execution, that the period, which intervened between 10th December 1918, when the execution was transferred to the Collector and 23rd April 1920, when the case was returned to the civil Court could not be deducted and that the application, dated 10th January 1922, was beyond three years from the date of the first application for execution which was made on 23rd July 1918.
66. The learned Subordinate Judge in support of his view on the question of limitation relied upon a pronouncement of this Court, In re Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95. The judgment has been reproduced in full in the Allahabad Law Journal Reports.
67. The decree-holder appealed to this Court on the ground that the application dated 6th January 1925, was not barred by limitation:
that the application dated 13th February 1919, saved limitation and was a step-in-aid of execution, that the said application was bona fide and was made to the proper Court and that there were other steps also which saved limitation.
68. The decree-holder appears to have raised the point for the first time in second appeal during the progress of the argument that a notice having been issued to the judgment-debtor under Order 21, Rule 22, Civil P.C., on 7th February 1922, and that the present application for execution being within three years from the date of issue of notice to the person against whom execution was applied for to show cause why the decree should not be executed against him, the present application was within time under Article 182(6), Lim. Act. This point was not raised or argued either before the trial Court or the lower appellate Court. The question raised is not a pure question of law and for the determination of the question, it would be necessary to determine whether, as a matter of fact, a notice was issued to the judgment-debtor under Order 21, Rule 22, Civil P.C. The judgment-debtor retorted by saying that the decree-holder was not entitled to the benefit of the issue of notice, unless an application for execution had been made in accordance with law. This matter, however, need not arrest our attention at the present stage of the appeal.
69. The lower appellate Court did not hold that the application, dated 10th February 1922, was not a bona fide application or was not in accordance with law. The decree-holder contended that as the present application was within three years of the aforesaid application, the execution of the decree was not time barred. The judgment-debtor contended that the application, dated 10th January 1922, was not a bona fide application nor was the previous one, dated 13th February 1919. The question was argued whether it was permissible to have a roving examination into all the previous applications in order to ascertain whether there might not be a weak link in the chain. There can be no question that there may be circumstances justifying an examination into the legality or propriety of previous applications in counting the period of limitation.
70. In Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95, the decree-holder, who had obtained a decree on 9th March 1915 from the Court of the Munsif of East Budaun, applied for execution on 12th February 1918. On 23rd January 1920, this application was struck off with the consent of the decree-holder. On 4th March 1921, he made a second application to the Munsif of East Budaun in which he prayed for attachment and sale of certain property which was outside the jurisdiction of the Munsif of Budaun. The application was dismissed on 29th April 1921, and the decree-holder took back all the process fee that he had deposited. On 12th January 1923, a fresh application was made for execution against property which was within the jurisdiction of the Munsif of East Budaun. The Courts below held that this application was time barred and limitation was not saved by the application dated 4th March 1921, which was not one in accordance with law. On appeal a Bench of this Court held that the application of 4th March 1921, was not an application for execution or a step in aid of execution and that the application of 12th January 1923, was barred by limitation. It further held that the application was not in accordance with law, because it was made to a Court which was not competent to grant the relief asked for.
71. It may be submitted with respect that on the facts found, the conclusion reached by this Court was the only possible conclusion.
72. The learned Judges made certain general observations which, it is submitted, were not necessary for the decision of the case. These observations, which have seriously influenced the judgment of the lower appellate Court may be reproduced:
On general principles it would seem clear that the legislature where it used phrases "application for execution" and "steps in aid of execution" had in mind a bona fide intention on the part of the decree-holder to proceed with his right to have execution. It does not seem possible that the legislature should have ever contemplated an indefinite period being added to the life of a decree by permitting a decree-holder to take colourable steps in a very thinly disguised pretence of a decree to obtain execution when he really did not want execution at all, but only wanted to secure a further period of limitation during which the amount of his decree might go on increasing. It would, therefore, seem on the face of it a proper interpretation of the words "for execution" and "steps-in-aid of execution" that the decree-holder must really be desiring execution and that the words cannot be read as "an application made with the sole object of extending the period of limitation" and "a step taken with the sole object of extending limitation." The words "for execution" mean "for the purpose of obtaining execution" & the words "step in aid of execution" mean "step taken for the purpose of obtaining execution. This, which appeared upon a consideration of Article 182 to be natural and proper interpretation, research has shown to have the support of weighty judicial authority, though the decisions would seem to have been, to some extent lost sight of, or, even if we may say so, misinterpreted.
73. A considerable mass of judicial pronouncements ranging over a long period of time has been placed under contribution in support of the view quoted above.
74. In Re, Roy Dhunput Singh v. Mudhomotee 11 Beng. L.R. 23, an application for execution was made on 24th April 1869 for execution of a decree. This application was preceded by an application dated 20th March 1866, in which the decree-holder alleged that the judgment-debtor had subsequently taken out a decree against a debtor of his own and sued out execution and caused some property to be sold and that the purchase money was received on deposit. The decree-holder prayed that the said amount be attached and be paid to his mukhtar. This petition was to obtain execution of a sum of money which it was not possible that the execution could reach. The question in this case was whether the application dated 20th March 1866 was a proceeding to keep the original decree in force, the question depending on Section 20, Act 14 of 1859, which provided that no process of execution shall issue from any Court not established by a Royal Charter to enforce any judgment, decree or order of such Court unless some proceeding shall have been taken to enforce such judgment, decree or order to keep the same in force within three years next proceeding in a Court having jurisdiction.
75. Their Lordships of the Judicial Committee were considering the question as to whether the application dated 20th March 1866 was a proceeding within the meaning of Section 20, Act 14 of 1859, and their Lordships came to the conclusion that the proceeding, though abortive, was a proceeding within the meaning of the Section 20, Act 14 of 1859. Nothing beyond this was decided or intended to be decided in this case.
76. In Hira Lal v. Budri Das [1879] 2 All. 792 the decree sought to be executed was one dated 14th January 1867. On 3rd December 1868, the Judge sent a decree to the Subordinate Judge to be executed by him. The Subordinate Judge struck out the execution proceedings off the file on 3rd April 1869. The decree-holder having reinstituted his application for execution on 9th April 1879 was met with a plea of limitation. The High Court held that the application for execution was time barred. The Privy Council reversed the decision upon the ground that:
although Section 14, Act 14 of 1859, did in terms, apply to a claimant engaged in prosecuting a suit upon the same cause of action against the same defendant...bona fide and with due diligence in any Court of Judicature which from a defect of jurisdiction or other cause shall have been unable to decide upon it, etc., the principle underlying the said section could be extended to a proceeding taken under Section 20 of the aforesaid Act.
77. In Act 14 of 1859 there was no section corresponding to Section 14, Clause (2), Lim. Act, now in force. Their Lordships observed:
The Act does not say and their Lordships are of opinion that a proceeding taken bona fide and with due diligence before a Judge whom the party bona fide believes, though erroneously to have jurisdiction, specially when the Judge himself also supposes that he has jurisdiction and deals with the case accordingly, is a proceeding to enforce the decree within the meaning of Section 20.
78. In this case their Lordships quote with approval the decision of Roy Dhunput Singh v. Mudhomotee Dabia 11 Beng. L.R. 23 which has already been referred to.
79. Although the words "bona fide" do not occur in Section 20, Act 14 of 1859, the words of this section were imperative so far that they insisted upon the existence of some previous proceeding taken to enforce such judgment, decree or order to keep the same in force within three years next preceding the application for such execution. This section was construed by the Calcutta High Court in a number of cases of which Lakkhi Narain v. Ram Chand Sarkar 3 W.R. 63 may be cited as an example. It was held that:
an application for execution of a decree, followed by the issue of notice, if made bona fide, (i.e., with a real intention and desire on the part of the decree-holder to execute his decree) is a proceeding within the meaning of Section 20, Act 14 of 1859, to keep alive the decree.
80. It was observed by Jackson, J., in Eshan Chundra Bose v. Pran Nath Nag 22 W.R. 512 that:
under the law of limitation which governed these matters before Act 9 of 1871 came into force, the Courts were held to be bound to ascertain that within three years preceding such application, some proceedings, that is, some bona fide and not colourable proceedings had been taken to enforce the judgment.
81. Act 14 of 1859 was repealed by Act 9 of 1871. Article 169, Schedule 2 of the latter Act provided that the period of limitation prescribed for execution of a decree or order of a civil Court is from the date of the decree or order or where there is an application made from the date of applying to the Court to enforce or keep in force the decree or order or where there is a notice issued, etc.
82. In Rohineenandan Mitter v. Bhagwan Chandra Roy 22 W.R. 154 Markby and Mittra, JJ., ruled that by the new law of limitation it was intended that there should be two specific dates from which the three years should be computed without reference to any enquiry whether the proceedings were taken for the purpose of enforcing the decree or were merely colourable for the purpose of keeping the decree alive. In Eshan Chandra Bose's case their Lordships commented upon the undesirability of leaving the decree-holder without any check or restraint in the matter of executing his decree, but they observed that it was better that those consequences should be exposed by actual examples and brought to notice in judgments of the Courts and the remedy left to the legislature which can properly and effectually deal with them, than that the Courts should, by a forced construction, endeavour to mitigate by their own authority the action and rigour of the law.
83. In Mangal Pershad Dicshit v. Girjakant Lahiri [1882] 8 Cal. 51 the decree was passed in 1851, when there was no legislative enactment of limitation for the execution of decrees. A 12 year's bar of limitation was adopted by a rule of analogy derived from Regulation 3 of 1793. Before the expiry of the 12 years, Act 14 of 1859 was placed upon the Statute Book. The numerous applications which were made for execution or for steps in aid of execution are set out in detail in the judgment of the Privy Council. Their Lordships ruled that the case was governed by Act 14 of 1859 and not by Act 9 of 1871 and that the decree was within time for a variety of reasons (with which we are not concerned in the present appeal), including this reason that there was no finding of either of the Courts below that the several proceedings were not bona fide for the purpose of enforcing the decree or keeping it in force. It is clear, therefore, that any proceeding taken under Act 14 of 1859 which had the effect of keeping the decree in force and which might not have the effect of enforcing the decree was enough to save limitation.
84. In Mahtab Kuar v. Shiam Sundar Lal [1888] A.W.N. 272 a decree was passed by the Subordinate Judge of Agra on 24th February 1881, which was transferred for execution to the Court of the Subordinate Judge of Aligarh. Certain execution proceedings were taken on 29th April 1881. The execution case was struck off on 1st September 1881. An application was made on 22nd February 1883:
The application was not prosecuted and no talbana fees were deposited to secure the due process of law but on 22nd August 1883, as the order endorsed upon the application shows, the decree-holder's pleaders stated that they did not wish to prosecute the application and then the order of the Court was that the execution case was to be struck off the file, in consequence of want of prosecution on the part of the decree-holder. The application for execution was made on 17th January 1885 and the previous application dated 22nd February 1883 was relied upon as affording a fresh starting point of limitation under Article 179, Sch. 2, Lim. Act. Clause (4), Article 17D, provided that the time was to run from the date of applying in accordance with law to the proper Court for execution or to take same step-in-aid of the execution of the decree or order.
85. It was argued in the aforesaid case that the application dated 22nd February 1883 was not for execution or to take some steps in aid of execution and that the decree-holder's expression of intention not to prosecute her application amounted to a withdrawal of it. The Court held that the decree-holder expressly withdrew the application without having obtained the permission of the Court to present a future application for execution of the decree and that the present application was barred by Section 373, Civil P.C. read with Section 647 of the Code. The judgment, however, contained the following observation:
An application made ostensibly for executing the decree, which application is not shown to have been made as a bona fide step in aid of execution, such want of bona fides being indicated, not only by the omission to deposit the talbana fees, but also by the express statement of the pleaders withdrawing the application does not amount to a step in aid of execution such as Article 179, Sch. 2, Lim. Act, contemplates. I, however, do not decide this point in this case.
86. It is submitted that when the application itself was withdrawn there was no application before the Court which could be treated as a step in aid of execution to give a fresh starting point of limitation. This case therefore is of no avail to the respondent. Chhattar v. Newal Singh [1889] 12 All. 64 was a case in which the decree-holder had obtained a decree for possession of the property as usufructuary mortgagee and for mesne profits. The decree for mesne profits was sought to be executed by attachment and sale of the mortgaged property. On 7th December 1886, they sought to execute the decree by sale of the mortgaged property but the application was rejected on the ground that it offended against Section 99, T.P. Act. This was preceded by an application dated 21st August 1886, the nature of which is not clear from the report. The questions raised in the appeal were whether the application dated 21st August 1886 or the 7th December 1886 was in accordance with law? All that was ruled in this case was that the terms 'applying in accordance with law' connoted the making of an application to the Court to do something in execution which by law that Court was competent to do. In order that an application should be in accordance with law or a step in aid of execution it is necessary that the application should be to the proper Court, that it should fulfil the formalities required by law and should ask for such reliefs as the application was entitled to under the terms of the decree and was not opposed to any statutory enactment.
87. In Mangal Sen v. Baldeo Prasad [1892] A.W.N. 70 the respondents obtained a simple money decree on 24th July 1884 against Mangal Sen. An application dated 22nd September 1887 was relied upon as a step in aid of execution which had the effect of making the application dated 4th September 1890 within time. The application dated 22nd December 1887 contained the following prayer:
After notification by means of attachment of the moveable property of which a list will hereafter be filed, the decretal money may be realized. At present for the purpose of saving limitation this application is made owing to the defendant having become insolvent.
88. Upon the very face of it, the application was not in accordance with law no inventory of the property sought to be attached having been detailed or set out in the application. The application moreover stated that it was not intended to be an application for execution at all but was merely an application for saving limitation. Now that Act 9 of 1871 had been repealed, this application could not be treated either as in accordance with law or as a step in aid of execution. Mahmood, J., observed:
I conclude that the application was simply a nominal transaction and a fictitious ceremony for the purpose as the application expressly states only of saving limitation.
89. There was obviously no desire on the part of the decree-holder to enforce his rights by execution of the decree and the application dated 22nd December 1887 was no more than dropping a letter into a post office box as if such a ceremonial would answer the purpose of the law in relation to the execution of the decree. The application was not in accordance with Section 235, Civil P.C. No relief was claimed against the judgment-debtor. The learned Judge describes the character of the application as a nominal transaction and a fictitious ceremony in contradistinction to an application in accordance with law. In determining the question whether the application answered the requirements of law the Court was competent to take into consideration the purpose expressly stated in the application itself.
90. In Adhar Chandar Das v. Lal Mohan Das [1897] 24 Cal. 778 the question which arose was whether the applications dated 6th June 1890 and 5th June 1893 were according to law. Maclean, C.J. ruled that "in accordance with law" did not mean that it must of necessity be a successful application. He further observed that the language of Article 179 ought not to be strained in favour of a judgment-debtor who had not paid his debt. Banerji, J. in the concluding portion of his judgment observed:
I do not think we should be doing right in straining the law and in holding that an application made bona fide with the object of obtaining satisfaction of a decree should beheld to be not in accordance with law merely because the Court in which the application was made thought fit for some reason not to allow the same.
91. The bona fide nature of the transaction or otherwise was not an essential part of the issues, which called for determination-issues-which have been set out by the learned Judge at p. 782. All that was probably meant by the use of the word "bona fide" in the passage quoted above was that the application was in due accord with the legal formalities and that the relief claimed was such as the applicant was legally entitled to. It is not improbable that the word "bona fide" crept into the judgment unguardedly without any seriousness of purpose.
92. In Gopal Chunder Manna v. Goshain Das Kale [1898] 25 Cal. 594 the case hinged upon the determination of the question whether an application dated 7th July 1891 was in accordance with law within the meaning of Article 179(4), Sch. 2, Lim. Act. It was conceded that the decree-holder was entitled to the exclusion of a certain period of time against some judgment-debtors under Section 14, Lim. Act. Whether an application was or was not in accordance with law had to be determined with reference to the circumstances of each case, and while on the one hand an application must be in substantial compliance with law in order that it may be regarded as one coming within the meaning of Clause (4) on the other hand, it is not every informality that would vitiate an application and would take it out of that clause. Were it otherwise, bona fide applications for execution would fail to save limitation owing to trivial defects of form, a result which I do not think the legislature could have intended. The term "bona fide application" evidently does not mean an application which is made with intent to immediate execution of the decree. What is intended to be laid down in this case is a proposition of law well settled and well understood that an ap plication which is in substantial compliance with law ought not to be treated as a nullity if it contains certain errors or omissions, due to accident, inadvertence or hasty judgment. Maclean, C.J. insists upon the rule that the Article of Sch. 2 should be read according to the ordinary significance of the words used. The language of the Article is reasonably clear and in my opinion, the safer course is to construe it according to the ordinary meaning of the words used.
93. In Jawahar v. Kamini Debi [1901] 28 Cal. 238 all that the Court held was that a proceeding to enforce a decree taken in a Court which was erroneously believed by the decree-holder to have jurisdiction was a bona fide proceeding within the terms of Section 14, Lim. Act.
94. The aforesaid cases fall under the following four groups: (1) Cases in which the decree-holder sought to exclude the time occupied in execution proceedings in a Court without jurisdiction on the ground that he had prosecuted in good faith and with due diligence. These are cases in which Section 14, Lim. Act, has been either applied or the principle of the section been extended to execution proceedings. (2) Cases in which the application for execution was not in strict conformity with law either owing to the omission of certain particulars in the application for execution itself, or to the omission on the part of the decree-holder to take some necessary steps where the defects were immaterial and not attributable to any mala fides on the part of the decree-holder. In such cases the defects were condoned and the application treated as in accordance with law (3) Cases in which the decree-holder applied to a Court which had no jurisdiction and asked for a relief to which he was not entitled either under the terms of the decree or under some statutory enactment or the application omitted some essential particulars as was required by the Code of Civil Procedure or by any other enactment in force,. In such eases it has been held that the application is not in accordance with law and (4) cases in which the decree-holder after applying for execution either failed to take some necessary step in furtherance of his application or to rectify an error or omission which he had been ordered to amend or intimated to the Court that the object of his application was not to execute the decree but simply to save time. In such cases it was held that such an application was not in accordance with law and did not save limitation.
95. The aforesaid cases therefore do not support the view for which they were cited. The only section of the Limitation Act in which due diligence or prosecution in good faith has been prescribed by the legislature is Section 14. In none of the Articles of the Limitation Act, the presence of bona fides or of a good faith has been required by the legislature as one of the necessary ingredients for either the right of suit or the right of application. It ought not to be forgotten that the right to sue or the right to apply for execution is a substantive right. It cannot be hampered, restricted or taken away by a procedural statute like the law of limitation without any express provision being made by the legislature.
96. Article 182 prescribes a period of three years with reference to certain decrees and is not confined to decrees for money which carry interest. There is absolutely no ambiguity in the text. As was held in Re Income-Tax Commissioners v. Pemsel [1891] A.C. 534(at p. 543):
If the words of the statute are in themselves precise and unambiguous, no more is necessary than to expound these words in their natural and ordinary sense, the words themselves in such case best declaring the intention of the legislature.
97. It is not permissible to read into the context words which are not to be found there. Where the application purporting to be for execution of a decree in terms of the relief available to the decree-holder under his decree has been made in proper form and to the proper Court, the requirements of Article 182, Sub-section (5), have been fully complied with. An application for execution evidently means an application which purports to be an application for the execution of a decree. The preposition 'for' in Clause (5) is descriptive of the nature of the applications and governs the word 'execution.' Applying to take step-in-aid of execution' does not connote any intention on the part of the applicant to take a step in aid of execution. It is submitted therefore that the words 'for execution' in Article 182, Clause (5), do not mean 'for the purpose of obtaining execution' nor the words 'step-in-aid of execution' mean 'step' taken for the purpose of obtaining execution.' No duty is cast upon the Court to apply itself to the extremely difficult if not the impossible task of examining the mind of the decree-holder to find out whether his intention was to obtain an immediate execution of his decree or to obtain a mere extension of time. In Halima Bibi v. Nishan Bibi [1890] A.W.N. 77. Tyrrell, J. in construing Article 179(4), Sch. 2, Lim. Act of 1877, made the following remarks:
Each application is within three years from the preceding one. The present application is dated 27th November 1888. The judgment-debtors plead that though it is in accordance with law and made to the proper Court still it is a bad application because all the previous motions displayed no bona fides or industry or diligence. I cannot entertain this contention. The current of decisions of this Court for years has been to read the provisions of Article 179(4), Sch. 2. Lim. Act, as they stand in the Act, that is to say, to consider only whether the application was made in conformity with the procedure laid down for such application in the Civil Procedure Code, and whether it was made to the proper Court and not to import into the consideration of the question whether it is an application according to law or not, considerations derived from subsequent conduct on the part of the decree-holder or of the Court.
98. In Debi Das v. Umrao Singh [1891] A.W.N. 148 Mahmood, J. held that:
in computing the period of limitation prescribed by Cl.(4), Art, 179, Sch, 2, Lim. Act, no question of the bona fides of the previous application for execution arises.
99. I respectfully endorse the opinions indicated above, and hold that the aforesaid decision lay down the correct rule of construction.
100. In Ruqaya Bibi v. Prag Tewari A.I.R. 1928 Oudh 337 Sir Louis Stuart, C.J. and Raza, J remarked as follows:
We are unable to understand that the words 'application in accordance with law to the proper Court for execution' can be held to refer to anything more than what they state. In this case the decree-holder certainly made the applications. He made them to the proper Court. He made them for execution of the decrees. The applications were in proper form and demanded the remedy to which he was entitled. We fail to understand why the Court should examine the decree-holder's mind to know whether he really wished m his heart to obtain the satisfaction for which he asked or whether he did not so wish.
101. It is not necessarily an act of bad faith on the part of the decree-holder if at the time of applying for execution, his sole intention was merely to keep his decree alive. Where the judgment-debtor has no property and no funds and has no expectations in the near future, the decree-holder cannot be expected to obtain an immediate fruit of his decree. All that he can do under the circumstances is to keep the decree alive in the hope of something more favourable turning up in future. A decree-holder may succeed in allowing his interest to accumulate against the judgment-debtor. This, again, is not necessarily an act of bad faith on the part of the decree-holder. The judgment-debtor has all this time the use of the money; and the decree-holder, in law and equity is entitled to claim his interest. If the terms relating to the payment of the interest are harsh, it is open to the judgment-debtor to put an end to this trouble, by paying up the decretal amount. The interpretation which has been put upon Article 182, cannot have the effect of indefinitely prolonging; the life of the decree. Indeed, the legislature has provided ample safe-guards. The language of Article 182(5) is similar to that of Article 179(4), Act. 15, of 1877. Col 1 Article 179 describes the nature of the application as being one for the execution of a decree or order of any civil Court not provided for by Article 180 or by the Code of Civil Procedure Section 230. Section 230, Act. 10 of 1877, provided that the maximum time for the execution of a decree was 12 years. The above condition has been maintained in Article 182, Lim. Act (9 of 1908) and Section 48 Civil P.C. (Act 5 of 1908).
102. My answer to the reference is therefore in the negative. If therefore a decree-holder makes any application or takes a step mentioned in Col. 1, Article 182, Lim. Act, this is legally sufficient to keep his decree alive and to save limitation, no enquiry into the question whether the decree-holder had a bona fide intention to proceed with his right to have execution being either necessary or permissible.
Niamatullah, J.
103. The question referred to this Full Bench is as follows:
If a decree-holder makes any application or takes any step mentioned in Col. 3, Article 182, Lim. Act, will such step be ineffectual to keep his decree alive and to save limitation, unless he can satisfy the Court that he took such step or instituted such proceedings with a genuine intention of obtaining execution of his decree if reasonably possible, and that he did not abandon such proceedings, except upon a genuine belief that it would not be reasonably possible to obtain execution.
104. The circumstances which led to the reference may be briefly recapitulated. The appellant before the Division Bench was the decree-holder, Kayastha Co. Ltd. whose application dated 6th January 1925 for execution of a decree passed as far back as 24th February 1916 was dismissed as time barred by the Subordinate Judge of Gorakhpur on appeal from the order of a Munsif of that district. The decree-holder avoids the bar of limitation by relying in the alternative, on two proceedings that were taken subsequent to the date of the decree and a previous application for execution by the decree-holder to be referred to hereafter. The first was taken by one Miss Chatterji, an attaching creditor, who applied on 23rd July 1918 for execution of the decree by sale of ancestral and revenue paying property of the judgment-debtor. Execution proceedings had to be transferred to the Collector under Sch. 3, Civil P.C., which was accordingly done by an order dated 10th December 1918. The Collector continued the execution proceedings till 23rd April 1920 when he returned the case to the civil Court. Why the proceedings before him were infructutous does not appear and is not material for the purposes of this case. The second was taken by one Raghunath Prasad to whom the decree-holder assigned his rights under the decree on 9th December 1917, subsequent to the attachment of the decree by Miss Chatterji. Raghunath Prasad applied on 13th February 1919 to the Court which passed the decree, for execution thereof, but the application was dismissed in default of appearance. Raghunath Prasad retransferred to the Kayastha Co. Ltd., the original decree-holders the rights that had passed to him by assignment. The decree-holder once more appeared on the scene and applied on 10th January 1921 for execution of his decree. Notice required by Section 48, Civil P.C., was ordered to be issued on 7th February 1921 but the application for execution was dismissed on 18th March 1922 for want of prosecution. The last application for execution was made on 6th January 1925 as to which the question is whether it is barred by limitation. The Division Bench has held that Miss Chatterji's application dated 23rd July 1918 gives a fresh start of limitation and that the period during which the execution proceedings were pending before the Collector should be excluded under para 11(3), Sch. 3, Civil P.C. This being so the application for execution dated 10th January 1922 was held to be within three years from the application (Miss Chatterji's) dated 23rd July 1918 and would save limitation for the last application, dated 6th January 1925, provided it be regarded as one 'in accordance with law' and made 'for execution of decree'. It was contended by the respondent that it should not be regarded as such, because it was not a bona fide application made for the purpose of obtaining satisfaction of the decree but was made only to obtain an extension of time. The second and the alternative case of the decree-holder, based on the proceedings taken by Raghunath Prasad, had the same complication, as the respondent urged that his application, dated 13th February 1919, like the decree-holder's application, dated 10th January 1922, was not a bona fide application. The contention was sought to be supported on the authority of Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95. On the facts of that case, the actual decision arrived at may be correct and could have been based on the ground that the application, from which limitation was to be computed, was not made to a proper Court; but, as it stands, it rests on the wider ground, viz., that such application was not proved to have been made in good faith and could not for that reason, give a fresh start to limitation. The learned Judges who have made the present reference were not disposed to agree with this view of Article 182(5), Lim. Act. They have accordingly referred the question already mentioned for decision by a Full Bench.
105. The period of three years provided for by Article 182 can be computed (inter alia) from the date of applying in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree.
106. The language employed by the legislature in enacting Article 182(5) quoted above does not ex facie require any enquiry relating to the motive or intention of the person applying for execution or for some step-in-aid of execution and requires merely that it should be in conformity with the law governing such applications, contain a prayer for the decree being executed and be presented to a proper Court. The learned Judges who decided the case Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95 however, seem to think that no application, otherwise in accordance with law and presented to a proper Court can be regarded as such to save limitation unless the object behind the application was to obtain satisfaction of the decree. The observation (at p. 470 of 48 All.) that:
on general principles it would seem clear that the legislature when it used the phrases "application for execution" and "step-in-aid of execution" had in mind a bona fide intention on the part of the decree-holder to proceed with his right to have execution. It does not seem possible that the legislature should have ever contemplated an indefinite period being added to the life of a decree by permitting a decree-holder to take colourable steps in a very thinly disguised pretence of a desire to obtain execution when he really did not want execution at all, but only wanted to secure a further period of limitation during which the amount of decree might go on increasing.
107. They founded their view, to a large extent, on the words "for execution" which, they think, signify that the application should have for its object a genuine desire to obtain satisfaction of the decree and should not be a mere device to obtain an extension of time for a future application. With the utmost respect, I would point out that the words, "for execution" or "to take a step in aid of execution" are merely descriptive of the application with reference to its contents especially the relief asked for therein. Sch 1, Lim. Act, abounds in expressions of that kind, e.g., "suit for possession," "suit for redemption," "suit for declaration" etc., and "application for rehearing" (Art. 169), "application for leave to appeal" (Art. 170), "application for review (Art. 173) etc." A suit for declaration is none the less a suit for declaration because the plaintiff's object in instituting it is to obtain stay of an auction sale of the property in dispute, case of common occurrence nor does an application for review of a judgment cease to be such if the applicant had some ulterior object in making it. Similarly an application can be described only an one for execution if it prays for execution. Its description or name cannot be different if the underlying object is different from what appears on the face of it. It is clear to me that the word "for" in Article 182(5) as in many other articles is indicative, not of the real intention of the person making the application, but of that declared in the application.
108. As for the general principle to which reference has been made in the passage quoted I need only refer to Section 48, Civil. P.C., which limits the life of a decree to twelve years:
It is not now possible for a decree-holder to have, by making successive applications for execution indefinite period being added to the life of a decree, as was the case when Jackson, J., referred to it (at p. 513) in making reference to a Full Bench in Eshan Chander Bose v. Prannath Nag 22 W.R. 512. The legislature has since minimised the possible abuse of fresh start being given by successive applications for execution by enacting Section 230, Civil P.C. Act 10 of 1877, which was replaced by Section 230, Civil P.C. of 1882 corresponding to which we now have Section 48, Civil P.C. of 1908. It will be remembered that cases decided under the Civil Procedure Code of 1882 enabled the decree-holders in certain cases to obtain a longer period than 12 years when an application for execution and attachment of property in pursuance thereof had been made before the expiry of 12 years but the application was dismissed, attachment being maintained expressly or impliedly In such cases it was repeatedly held that an application made after the expiry of 12 years from the date of decree for sale of property under a subsisting attachment was not barred by Section 230(now Section 48), Civil P.C. This practice has been put an end to by enactment in 1908 of Order 21, Rule 57, corresponding to which there was no provision in earlier cases and under which attachment is automatically withdrawn with the dismissal of application for execution, and the 12 years' rule contained in Section 48, Civil P.C., can be rigorously enforced against a decree-holder. Apart from the possibility of a decree-holder abusing the power to obtain extension of time by making successive infructuous applications to pile up interest on the principal decretal amount no other objection on the score of "general principles" has been suggested. The period of 12 years within which he must obtains satisfaction of his decree is not unduly long. Interest subsequent to the decree is, in generality of cases, fixed at a low rate and is seldom compoundable. It is always open to a judgment-debtor to checkmate the desire of the decree-holder to swell his decretal amount by making payment. There is no reason why "on general principles" the decree-holder is to be penalised in the interests of a defaulting judgment-debtor and should not be allowed to wait for a more favourable future occasion to recover his money In many cases it is to the benefit of the latter that drastic steps should not be taken by a decree-holder to obtain prompts satisfaction of the decree.
109. The history of the enactment contained in Article 182(5) and the case law bearing on it do not, in my opinion, support the view implied in the passage already quoted from the judgment in the case of Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95 and I shall proceed to notice the authorities relied on therein.
110. Section 20, Act 14 of 1859, which contains the earliest law on the subject is in the following terms:
No process of execution shall issue from any Court not established by Royal Charter to enforce any judgment, decree, or order of such Court, unless some proceeding shall have been taken to enforce such judgment, decree or order or to keep the same in force within three years next preceding the application for such execution.
111. While this enactment was in force, no question could possibly arise as to whether proceedings ostensibly taken to enforce the decree or order were in reality taken to obtain a fresh start of limitation as the section itself made it permissible for the holder of a decree to obtain extension of time by avowedly taking proceedings "to keep the same in force." In cases decided under this statute the bona fides of a decree-holder were referred to in condonation of an error on his part in taking certain proceedings and to invoke the aid of Section 14 which, as the corresponding section of the present Limitation Act does, excluded the time during which the claimant... shall have been engaged in prosecuting a suit upon the same cause of action... bona fide and with due diligence.
112. It should be noted that the section last quoted applies, in terms, only to suits but their Lordships of the Privy Council extended its principle to execution proceedings presumably on general equitable grounds.
113. The first case decided by that tribunal is Mahtab Chand Bahadur v. Bulram Singh Baboo 5 Beng. L.R. 611 in which it was held that:
so long as an actual bona fide contest is going on in Court between a decree-holder and the judgment-debtor as to the judgment, there is a pending" "proceeding" "within Section 20, Act 14 of 1859, and the period of limitation must be computed from the Court's decision.
114. This was followed in Roy Dhunput Singh v. Mudhomotee Dabia 11 Beng. L.R. 23 where an execution sale was stayed by consent for two months, and the execution suit was struck off the file. During such period the execution creditor applied to the Court to restore his execution suit, and to pay to him certain moneys in deposit in Court to the credit of the judgment-debtors in another suit, alleged that he (the execution creditor) had attached them; but it turned out that he had attached them in another suit. Held, the application being bona fide, the period of limitation began to run from the date of the disposal of the application by the Court.
115. The ratio decidendi of these cases clearly is that even mistaken but bona fide proceedings to enforce the decree saved limitation They can be no authority for the converse proposition that proceedings in conformity with law in every respect are of no avail if the intention of the applicant was merely to give a fresh lease of life to his decree and in that sense not bona fide. Their Lordships observed at p 32:
Then assuming it to be a bona fide proceeding, which fell in consequence of that mistake, their Lordships think that the original petition was a proceeding to enforce the judgment, and to have execution of it; that it was a continuing proceeding duly prosecuted by the appellant, up to the time of the report, and further up to the time when the judgment was finally given, and that during the whole of such pendency, the decree-holder must be considered as going on with one and the same proceeding. Their Lordships do not consider that the fact that it was in the end abortive, takes from it the character of a proceeding to enforce the decree. The consequence will be that 12th May 1866, when the petition was dismissed, is the date from which the three years ought to commence to run.
116. Section 14 is not referred to in any of these cases but in a later case Hira Lal v. Badri Das [1879] 2 All. 792 which follows the second, Section 14 was expressly referred to and the principle underlying it was applied to execution proceedings. Their Lordships say at p. 796:
There can be no doubt that the applications to and orders of the Subordinate Judge if he had jurisdiction would have been sufficient to prevent the operation of the statute of limitations, and their Lordships are of opinion that, under the circumstances of the case, they had that effect, even if he had no jurisdiction. Section 14, Act 14 of 1859, enacts,
117. Section 14 is quoted in full. Their Lordships proceed (p. 797.):
It was, therefore, the object of the legislature, at least with regard to the limitation for the commencement of a suit, to excludes the time during which a party to the suit may have been litigating, bona fide and with due diligence, before a Judge whom he may suppose to have had jurisdiction. The question is, whether the same principle may not be applied to the construction of Section 20, Act 14 of 1859, with regard to execution.
118. After quoting Section 20 they continue to lay down that:
The Act does not say some proceeding in a Court having jurisdiction, and their Lordships are of opinion that a proceeding taken bona fide and with due diligence before a Judge whom the party bona fide believes, though erroneously, to have jurisdiction, specially when the Judge himself also supposes that he has jurisdiction, deals with the case accordingly, is a proceeding to enforce the decree within the meaning of Section 20. In this case the Subordinate Judge did believe he had jurisdiction. Applications ware made to him and he made orders which would, if had jurisdiction, have been proceedings within the period of limitation. If the judgment-debtors had appeared before the Subordinate Judge, and had objected to his jurisdiction, he must have decided whether he had jurisdiction or not; and if had decided that he had jurisdiction, even though he had not, the proceedings would have been proceedings within the meaning of Section 20. They ought equally to be so, though the judgment-debtors did not appear or object to the jurisdiction.
119. Apart from Section 14, Section 20, Lim. Act 14 of 1859, is so differently worded from the corresponding provisions in Acts of 1871, 1877 and 1908 that the question of bona fides might well have arisen in cases governed by the former enactment, according to which, limitation could be counted from any point of time, during the whole proceeding, beginning with the application of the decree-holder and ending with the final order of the Court terminating them, and was not to run only from the date of the "application for execution" or "for some step in aid of execution" as now. In the former case the whole period of pendency of the proceedings was to be excluded from the computation of limitation. The "proceeding" contemplated by Section 20, Act 14 of 1859, included not only the action of the applicant but also of the Court. Section 20, Act 14 of 1859, was interpreted by their Lordships as providing for execution proceedings what Section 14 of that Act did for suits. It is highly significant that Section 14, Lim. Act 14 of 1877, made its provisions applicable to execution proceedings inasmuch as it provided that:
In computing the period of limitation prescribed for any application, the time during which the applicant has been making another application for the same relief, shall be excluded, where the last mentioned application is made in good faith to a Court which from defect of jurisdiction, or other cause of a like nature, is unable to grant it.
120. It should be mentioned here that Article 179 of this Act allows limitation to be reckoned only from the date of the application and not from any stage of the proceedings.
121. In Act 9 of 1871 the schedule of limitation follows the same arrangement as the Act of 1877 or the present Act. Article 167 runs thus:
For execution of a decree of any civil Court not provided for by Article 169....
The date of applying to the Court to enforce or keep in force, the decree or order, or... the date of issuing a notice under the Civil Procedure Code, Section 216.
122. It is to be observed that it was possible while that Act was in force, to apply merely for keeping the decree in force.
123. In an illuminating judgment delivered by Markby, J., a Bench of the Calcutta High Court interpreted, in Rohinee Nundan Mitter v. Bhugwan Chunder Roy 22 W.R. 154, Article 169, Act 9 of 1871, as excluding an inquiry into the bona fides of the applicant. Referring to that part of the Article 167 which allows limitation to be reckoned from the date of notice issued under Section 216, Civil P.C. the learned Judges argue:
Now we think it is clear from that paragraph that the date of issuing a notice is an absolute date from which the time is to be reckoned without any reference to the question of bona fides. There is not a single word in that paragraph upon which the consideration of the (so called) bona fides of the application are possibly to be imported. If that is so, we think (reverting to the paragraph which we have to interpret) that it must be so in this case also. It is pointed out in the Full Bench decision of Sir Barnes Peacock that issue of the notice is a proceeding, which would be sufficient to keep the decree alive, if it follows upon a bona fide application, for it will then be a proceeding in furtherance of the application previously made to enforce the decree. But on the other hand, if it only follows upon an application which is merely colourable, then within the principle of that decision it would be no proceeding at all. It would be hardly possible, however, to suppose that the legislature should have intended that an application which was merely colourable should not keep alive the decree and that a notice following that application, which would be in no way better, should keep the decree alive.
124. Not long afterwards, a reference was made to a Full Bench of the Calcutta High Court by two other learned Judges of that Court who entertained doubts regarding the correctness of the view propounded by Markby, J. In his referring order Jackson, J., commenting on the case Rohinee Nundan Mitter v. Bhugwan Chunder Roy 22 W.R. 154 pointed out that:
If that be a true construction of the Act, it would follow that a plaintiff who obtains a decree for a sum of money with, interest, perhaps at a larger rate, say, on 1st January 1870, may put in an application on 1st January 1873; another, on 1st January 1876; and so on but taking care only to renew applications once in three years without taking any further step whatever, without any intention to obtain satisfaction of his decree at the end of three years, and he would be entitled to recover the principal sum and the accumulated interest thereon at that larger rate after the lapse of, say, 20 or 30 years.
125. The ruling of the Full Bench is reported in Eshan Chunder Bose v. Prannath Nag 22 W.R. 512 and upheld the view of Markby, J. After quoting Article 167, Couch, C.J., who delivered the judgment of the Court remarked:
These words clearly give to the person who has a decree the power, so far as regards the law of limitation, of applying for the execution of it within three years from its date, or within three years from the date of the application to the Court to enforce or keep it in force. There is no restriction as to the second or third, or any subsequent application. So far then as regards this Act the decree-holder is not restricted. All that appears necessary for him to do is to take care that the application is within three years from the date of applying to enforce the decree or to keep it in force; and he is at liberty within three years from that date to apply again for execution.
126. In concluding his remarks the learned Chief Justice, expressed the opinion that "this was not a satisfactory state of law.... because it may enable a decree-holder to keep the decree alive for very many years, when he ought not to be allowed to do so.
127. Due note of these judicial dicta was aken by the legislature three years later when in 1877 the Civil Procedure Code and the Limitation Act were recast and resulted in the passing of Act 10 of 1877, (Civil P.C.) and Act 15 of 1877 (Limitation Act). They throw a flood of light on the question which we have to consider. On the one hand the following new provision was inserted in Section 230, Civil P.C. (Act 10 of 1877), viz:
Where an application to execute a decree for the payment of money or delivery of other property has been made under this section and granted no subsequent application to execute the same decree shall be granted unless the Court is satisfied that on the last preceding application due diligence was used to procure complete satisfaction of the decree; and the order of the Court granting any such subsequent application shall be conclusive evidence that due diligence was used to procure such satisfaction.
And no such subsequent application shall be granted after the expiration of 12 years from any of the following dates (viz).
(a) the date of the decree ought to be enforced or of the decree (if any) on appeal affirming the same or,
(b) where the decree or any subsequent order directs the payment of money or the delivery of property by instalments, the date of the default in paying or delivering the instalment in respect of which the applicant; seeks to enforce the decree.
128. On the other hand the language which had been employed by the Limitation Act 9 of 1871 was somewhat altered to clarify the intention of the legislature without introducing any expression like "good faith" or "bona fide" as would otherwise be expected in view of the previous judicial decisions. The relevant part of Article 179, Act 15 of 1877, is as follows:
For the execution of a decree or order of any civil Court not provided for by No. 180 or by the Civil Procedure Code, Section 230.
(4)... the date of applying in accordance with law to the proper Court for execution, or to take some step-in-aid of execution of the decree or order; or (5)... the date of issuing a notice under the Civil Procedure Code, Section 248.
129. Unlike Section 20, Act 14 of 1859, under which the whole period occupied by the proceeding for execution could be excluded, the Limitation Act 15 of 1877 made time to run from the date of the initial application and the time occupied by proceedings that followed it could not be excluded under the article itself. It is noteworthy that Section 14 was by this Act extended to applications to which the corresponding Section 14, Act 14 of 1859, did not extend and therefore the whole period subsequent to the date of the application till its dismissal could be excluded only under Section 14 on proof of due diligence and good faith.
130. Placing Section 230, Civil P.C., (Act 10 of 1877) and Article 179, Lim. Act (Act 15 of 1877) (the former received the sanction of the Governor-General in Council on 30th March 1877 and the latter less than six months afterwards on 19th July 1877) in juxtaposition, it is proved to demonstration that the requirement of "bona fides" or "due diligence" was not implied in Article 179, Lim. Act, 15 of 1877) and was meant to be covered only by Section 230, Civil P.C. (Act 9 of 1877) "While these enactments were in force it could not possibly be contended that the words "in accordance with law" "application for execution" "application for some step-in-aid of execution" meant that such application should have been made with a genuine intention of obtaining satisfaction of the decree. It should be noted that an application merely to keep the decree in force" could no longer give a fresh start to limitation. Nothing short of an application praying for execution or for some step in aid of execution would be efficacious. As to whether such application was ''bona fide" was not part of the rule of limitation contained in Article 179, Act 15 of 1877, but was to be established in terms of the rule contained in Section 230, Civil P.C. (Act 10 of 1877). When Act 14 of 1882 was passed the rule contained in Section 230, Civil P C. (Act 10 of 1877) was materially altered and made to run in the new Act as follows:
Where an application to execute a decree for the payment of money or delivery of other property has been made under this section and granted, no subsequent application execute the same decree shall be granted after the expiration of 12 years from any of the following dates. (viz):
(a) the date of the decree sought to be enforced or of the decree (if any) on appeal affirming the same; or
(b) where the decree or any subsequent order directs any payment of money or the delivery of any property, to be made at a certain date the date of the default in making the payment or delivering the property in respect of which the applicant seeks to enforce the decree.
131. Article 179, Lim. Act (15 of 1877), was left intact. In spite of the amendment of the rule in Section 230, Criminal P.C., the former could have no other meaning than what it previously did the wording of Article 179 remaining as before. It is clear to my mind that on the one hand the Limitation Act conferred an unqualified right on the decree-holder to apply for execution within three years from the date of a previous application for execution or for step-in-aid of execution it was made the province of the Code of Civil Procedure to prescribe limitations and conditions to which the right was subject, such limitations and conditions were more stringent under the Civil Procedure Code of 1877 than under that of 1882.
132. In 1908 the Code of Civil Procedure and Limitation Act were taken in hand by the legislature together and the law in this respect as it was in 1882 was retained in its entirety.
133. From what has been shown above it follows that whatever could be said of Section 20, Lim. Act (14 of 1859) of which the language was different and was not qualified or controlled by any provision in the Code of Civil Procedure that could overlap the Limitation Act, if Article 20 was interpreted to imply the requirement of proof of good faith in making a previous application for execution. Since the enactment of the Civil Procedure Code and the Limitation Act in 1877, Section 230 of the former would overlap the latter if Art 179 were taken to imply the requirement of proof of good faith in making a previous application for execution or step in aid of execution.
134. Turning to the case law which followed the repeal of the Limitation Act 14 of 1859 we can find no decision, before the case of Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95 in which it might have been held that the decree-holder should establish that the previous application from which he desires to reckon his limitation was made bona fide with the real intention of obtaining satisfaction of his decree and not with the sole purpose of obtaining extension of time in which case it could not be considered as an application 'in accordance with law.' I have already commented on the two cases reported in 22 W.R. and need not repeat in this connexion what I have already said about them. I have also referred to the case of Hira Lal v. Badri Das [1879] 2 All. 792 pointing out that the question there was complicated by the application of Section 14, Act 14 of 1859. In other later cases likewise wherever proof of 'good faith', "bona fide," or 'due diligence' was insisted on, the aid of Section 14, Lim. Act, had been invoked for obtaining the exclusion of the whole period during which certain proceedings remained pending before a Court not having jurisdiction and wherever the case was free from such complication no abjection as to good faith was raised, and if raised, it was repelled.
135. In Mungul Pershad Dichit v. Girija Kant Lahiri [1882] 8 Cal. 51 their Lordships cleared the ground by ruling at the outset that the case was governed by the Limitation Act 14 of 1859 and not by that of 1871 (p. 61). Then they proceeded to hold that:
It was scarcely contended in the argument before their Lordships, that the application of 2nd September 1877 was barred, if the case is governed by Section 20, Act 14 of 1859. It was within three years from the date of the service of the notice on 23rd September 1874, which was a proceeding within the meaning of the last mentioned section, also within three years from the date of the petition of 8th October 1874, and of the order of the same date made thereon.
136. Then follows the passage that:
In the face of the application of the judgment-debtor made from time to time to stay the sale of property which had been attached, it cannot be presumed that the decree was ever satisfied, nor was there any finding of either of the Courts below that the several proceedings were not bona fide for the purpose of enforcing the decree or of keeping it in force.
137. This case is of the same category as the three Privy Council cases already noted by me and can be no authority on questions arising after Act 14 of 1859 ceased to be law.
138. The case of Chattar v. Newal Singh [1889] 12 All. 64 decided that where an application asks for what the Court had no jurisdiction to grant, it is not one in accordance with law. No question as to good faith was either raised or decided. In fact no such words occur in the judgment.
139. In Halima Bibi v. Nishan Bibi [1890] A.W.N. 77, Tyrrell, J. held that:
In applying Article 179, Section 11, Lim. Act (15 of 1877), the only questions are whether the former application for execution or for a step in aid of execution was in accordance with law and made to the proper Court has not to consider whether such application displayed bona fides or industry or diligence, as by payment of the necessary process fee.
140. In Debi Das v. Umrao Singh [1891] A.W.N. 148 Mahmood, J., held that in computing the period of limitation presented by Clause (4), Article 179, Sch. 2, Lim. Act, no question of the bona fides of the previous application for execution arises.
141. In Mangul Sen v. Baldeo Prasad [1892] A.W.N. 70 the application from which time was sought to be reckoned contained the prayer:
After notification by means of attachment of the moveable property, of which a list will hereafter be filed, the decretal money may be realized. At present for the purpose of saving limitation this application is made owing to the defendant having become insolvent.
142. It should be borne in mind that since the passing of Act 15 of 1877 an application praying not for execution of decree but for keeping it in force could not give a fresh start of limitation. The decision, therefore, was in perfect accord with the law, in holding that the application could not be interpreted as one containing a prayer for execution.
143. In Adhar Chandra Dass v. Lal Mohan Das [1898] 25 Cal. 594 the application from which limitation was sought to be reckoned was one for execution and for substitution of names of the heirs of the deceased judgment-debtor and had been made when the decree was under attachment in execution of another decree It was dismissed on the ground that no execution could issue while the attachment of the decree subsisted. It was held that the application was one in accordance with law to take a step in aid of execution, even though it could not be entertained as an application for execution because it also prayed for substitution which was a step in aid of execution. After discussing certain cases Banerji. J,, concluded that:
None of those cases is in point; and I do not think we should be doing right in straining the law and in holding that an application made bona fide with the object of obtaining satisfaction of a decree should be held to be not in accordance with the law merely because the Court in which the application was made thought fit, for some reason, not to allow the same.
144. The words 'good faith' occurring in this passage were used in passing and were not intended to be part of any rule there recognized. The case of Gopal Chunder Manna v. Gosain Das Kalay [1901] 28 Cal. 238 and that of Jahar v. Kamini Debi [1891] A.C. 534 in which Section 14, Lim. Act, was pleaded do not lay down anything relevant to the subject with which we are concerned.
145. I have discussed most of the cases, including those referred to in the judgment of Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95 decided before it, some of which do not find a mention in it. During the last three years that it has held the field in these provinces, it has not remained unchallenged and was expressly dissented from by a Bench of the Oudh Chief Court in Ruqaya Bibi v. Prag Tewari A.I.R. 1928 Oudh 337 in which Stuart, C.J. and Raza, J., held that an application to be "in accordance with law" need only comply with the formalities laid down by Civil Procedure Code and no inquiry as to the bona fides of the applicant is contemplated by Article 182, Lim. Act.
146. For the reasons stated above I would answer the reference in the negative as follows:
A decree-holder or a person applying for execution of a decree is not called upon to satisfy the Court that a previous application for execution or for some step in aid of execution, from which he seeks to reckon the period of limitation for his next application, had been made: with a genuine intention of obtaining execution of his decree if reasonably possible and that he did not abandon the proceedings except upon a genuine belief that it would not be reasonably possible to obtain execution.