JUDGMENT Thom, C.J.
1. The question referred for decision may be stated thus : "Is Section 48, Civil P.C., uncontrolled by the provisions of Section 15, Limitation Act?" The question has arisen in the following circumstances : A final decree was passed on 19th May 1922 against one Raghubir Pal Singh and his son Dirag Pal Singh. The decree-holders presented an application for execution of that decree on 8th May 1925. During the pendency of this application, the validity of the decree was challenged by the judgment-debtors in Suit No. 171 of 1926. This suit was dismissed by the trial Court on 23rd May 1927. The plaintiffs appealed to the High Court and during the pendency of the appeal in the High Court the execution proceedings initiated on 8th May 1925 were stayed by order dated 26th November 1927. On 12th April 1932, the judgment-debtors appeal in Suit No. 171 of 1926 was dismissed and the stay order was discharged. The execution application had remained pending throughout. It was however dismissed for want of prosecution in February 1936. The decree-holders, on 20th October 1936, filed a second application for execution. The judgment-debtor objected to the execution of the decree upon the ground that it was barred by Section 48, Civil P.C. The decree was passed in 1922 and the second application for execution was made in 1936, that is after the lapse of 12 years. The decree-holders maintained however that in virtue of the provisions of Section 15, Limitation Act, in computing the time within which they were entitled to execute their decree the period during which the execution of the decree had been stayed should not be included. Section 48, Civil P.C., enjoins that:
Where an application to execute a decree not doing a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from-
(a) the date of the decree sought to be executed, ...
2. This provision imposes a complete bar to the execution of a decree after the expiration of 12 years from the date on which the decree was granted except in the cases for which provision is made later in the Section. Section 15, Limitation Act, is in these terms:
(1) In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
3. If the terms of the latter provision are general in their application and are not confined to the periods of limitation prescribed in the Limitation Act, Section 48, Civil P.C., will be controlled in its operation thereby; and a decree-holder will be entitled to exclude, in the computation of the period of 12 years prescribed in Section 48, Civil P.C., the period during which the execution of his decree may have been [stayed by injunction; that is provided Section 48 "prescribes a period of limitation" within the meaning of Section 15, Limitation Act. In the decision of the matter referred to this Bench therefore two questions fall to be considered : (1) Is Section 15, Limitation Act, confined in its operation to periods of limitation prescribed by the Act or by Schedule 1 thereof and (2) does Section 48, Civil P.C., "prescribe a period of limitation?"
4. In regard to the first question, it is to be observed that the terms of Section 15, Limitation Act, are perfectly general; no qualification whatever has been introduced into the Section. It must be assumed that the Legislature advisedly did not include the words "By this Act" or "by Schedule 1 of this Act." The contention was advanced however that Section 15 must be interpreted in the light of Section 3 of the Act. Section 3 enjoins that:
Subject to the provisions contained in Sections 4 to 25 (inclusive) every suit instituted, appeal preferred and application made after the period of limitation prescribed therefor by Schedule 1 shall be dismissed, although limitation has not been set up as a defence.
5. This Section relates to the periods of limitation prescribed in Schedule 1 only. It does not follow however that the scope of Section 15 which refers to the exclusion of intervals in the computation of periods of limitation should be so confined. Schedule 1 is not the only statutory provision which prescribes a period of limitation Article 181, Schedule 1 refers to the period of limitation prescribed by Section 48, Civil P.C. To this, it will be necessary to advert later in considering the question as to whether Section 48, Civil P.C., does "prescribe a period of limitation." Again Section 29, Limitation Act, refers to periods of limitation which are prescribed by any special or local law. In view of the unqualified terms of Section 15 of the Act, and of the fact that periods of limitation are prescribed in a number of statutory enactments, it does not appear that there is any justification, judicial authority apart, for restricting the operation of the Section to the periods of limitation prescribed by the Act or by Schedule 1.
6. As to whether the general provisions in regard to the computation of periods of limitation contained in the Limitation Acts of 1859, 1871 and 1877 and in the present Act of 1908, were intended by the Legislature to apply to periods of limitation prescribed by other statutory enactments there has been a sharp divergence of judicial opinion. The question has been considered on many occasions by the High Courts in India and an exhaustive citation of the authorities was made during the hearing by learned Counsel in the course of their very able arguments. I do not consider it necessary to discuss in detail the decisions to which reference was made; firstly because the controversy so far as this Court is concerned is in my judgment, concluded by the Full Bench decision in Dropadi v. Hira Lal (1912) 34 All. 496 and secondly because the Legislature by its amendment of Section 29, Limitation Act, 1908 in 1922 placed the matter beyond doubt. In the judgment of the Full Bench in Dropadi v. Hira Lal (1912) 34 All. 496 there is a very full discussion of the question under consideration and an elaborate citation of authority. That case was decided in 1912 before the amendment of Section 29, Limitation Act, in 1922. As enacted in 1908, the Section repeated the provisions of Section 6, Limitation Act of 1877 (Act 15 of 1877), namely:
When by any special or local law, now or hereafter in force in British India, a period of limitation is specially prescribed for any suit, appeal or application, nothing herein contained shall affect or alter the period so prescribed.
7. The question in Dropadi v. Hira Lal (1912) 34 All. 496 was whether Section 12, Limitation Act, governed an appeal under Section 46, Provincial Insolvency Act. The question therefore was very similar to the one referred to this Bench for decision. After discussing the course of legislation with special reference to the provisions in the earlier Acts corresponding to Section 29 in the present Act and a review of the earlier decisions, Richards C.J., Karamat Husain and Chamier JJ. concluded that the general provisions of the Limitation Act applied to the computation of periods of limitation prescribed by other statutory enactments and were not confined in their operations to the periods prescribed by the Act or by Schedule 1. That this decision correctly interpreted the intention of the Legislature was put beyond doubt by the amendment to Section 29, Limitation Act in 1922. As amended, Section 29 is as follows:
...(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by Schedule 1, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:
(a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) the remaining provisions of this Act shall not apply.
8. Under this amended Section, the general provisions in Section 4 and Sections 9 to 18 and of Section 22 apply to the computation of periods of limitation prescribed by any special or local law except where their operation is expressly excluded. Whether these general provisions apply to Acts which are Codes complete in themselves and which contain DO express exclusion thereof is a matter upon which I do not consider it necessary, in answering the question referred, to pronounce. The only question with which we are concerned in the present reference is as to whether these general provisions and in particular Section 15 of the Act govern Section 48, Civil P.C.
9. Now the Code of Civil Procedure is not a special or local Act, but there is high authority for the proposition that the provisions of the Code are subject to the provisions of the Limitation Act. In Phoolbas Koonwar v. Lalla Jogeshur Sahoy (1875) 1 Cal. 226, the Judicial Committee of the Privy Council held that the limitation of one year, provided by Section 246, Civil P.C. (Act 8 of 1859) is subject, in the case of a minor, to be modified by Sections 11 and 12 of Act 14 of 1859. Section 246 of Act 8 of 1859 made provision for the challenge by way of suit, of an order for sale following an attachment in execution of a decree. The Section provided that the order might be challenged within one year. Sections 11 and 12 of Act 14 of 1859 relate to the computations of periods of limitation in the case of legal disability. The question before the Judicial Committee was whether Sections 11 and 12 of Act 14 of 1859 are limited to the period when the disability of the minor had ceased or whether it applied also to the period during which the disability continued. In considering the general question as to whether the provisions of the Limitation Act govern the provisions of the Code of Civil Procedure their Lordships observed (at p. 242).
The two statutes were passed in the same year, the assent of the Governor-General being given to Act 8 on 22nd March, to Act 14 on 4th May 1859. The object of the first was to enact a general Code of Procedure for the Courts of Civil Judicature not established by Royal Charter. The object of the second was to establish a general law of limitation in supersession both of the Regulations which had governed those Courts and the English statutes which had regulated the practice of the Courts established by Royal Charter. Looking to Sub-section 5 of Section 1 and Sections 3 and 11, Act 14 of 1859, their Lordships have no doubt that the intention of the Legislature was that the period of limitation resulting from Section 246 of Act 8 should, in the case of a minor, be modified by the operation of Section 11 of Act 14.
10. Now the present Limitation Act and the present Civil Procedure Code were enacted in the same year 1908, and upon a consideration of the terms of the Sections under consideration and of the authorities above referred to in my judgment the general provisions of Section 15, Limitation Act, are intended to apply to periods of limitation prescribed in the Civil Procedure Code and are not confined in their operation to periods prescribed by the Limitation Act or by Schedule 1. I do not consider it necessary in this connexion to discuss the question as to whether there is any period of limitation proscribed in the Act elsewhere than in Schedule 1. It is sufficient for the present purpose to hold that the provisions of Section 15 apply to periods of limitation prescribed by the Civil Procedure Code. This leads to a consideration of the second question formulated earlier in this judgment, namely, "Does Section 48, Civil P.C., prescribe a period of limitation?" In considering this question the terms of Article 181, Limitation Act, are relevant. Article 181 refers to applications for which no period of limitation is provided elsewhere in this Schedule or by Section 48, Civil P.C., 1908.
11. Article 182 may also be considered in this connexion. This Article relates to the execution of decrees or order of any Civil Court not provided for by Article 183 or by Section 48, Civil P.C., 1908.
12. It will be observed that the Legislature, in so many words, refers to Section 48, Civil P.C., as prescribing a period of limitation. Further in Article 182 the Legislature refers to Article 183, Limitation Act, and Section 48, Civil P.C., "providing for" certain decrees. In its provisions for decrees Article 183, Limitation Act, clearly prescribes a period of limitation. It is plain from the terms of Articles 182 and 183 that the Legislature regarded Section 48, Civil P.C., as making a similar type of provision for decrees, applications, etc., as the Articles do. The Articles "prescribe periods of limitation." In this connexion it may be noted that Section 48, Civil P.C., is headed : "Limit of time for execution."
13. Apart from judicial authority therefore it appears to me to be clear that Section 48, Civil P.C., does prescribe a period of limitation. The opposite view however has been taken in certain cases where however the question does not appear to have been exhaustively discussed. In Jurawan Pasi Mahabir Dube (1918) 5 A.I.R. All. 216 it was observed that Section 48, Civil P.C., did not, in a "strict sense" provide a period of limitation, an observation which was obiter. In Shiam Karan v. Collector of Benares (1919) 6 A.I.R. All. 64 it was again observed that in a "strict sense" Section 48 does not prescribe a period of limitation, that in a general sense it does impose a limitation. And in Subbarayan v. Natarajan (1922) 9 A.I.R. Mad. 268, Ramesam J. held that the period mentioned in Section 48, Civil P.C., was not a period of limitation in the "strict sense" of the term and that consequently Section 15, Limitation Act, was not applicable to it.
14. With respect I am unable to agree with the view that when the Legislature referred to Section 48, Civil P.C., as prescribing a period of limitation it used the words "period of limitation" in a different sense in that in which they are used throughout the Act. Furthermore, I find great difficulty in accepting the view that periods of limitation in a loose sense are prescribed in certain Acts and in a strict sense in others. What is meant by prescribing a period of limitation in "a loose sense" is not at all clear. It appears to me that if the result of a statutory provision is in substance to fix a period within which a person must take appropriate and necessary action if he desires to assert his rights in a Court of law, that provision prescribes a period of limitation. I am fortified in this view by the language used by the Judicial Committee of the Privy Council in their judgment in Phoolbas Koonwar v. Lalla Jogeshur Sahoy (1875) 1 Cal. 226. In the passage already quoted, (p. 242) their Lordships refer to the period of limitation "resulting from Section 246 of Act 8." In my opinion if a period of limitation results from a statutory provision that provision prescribed a period of limitation. In this view of the matter, it cannot be doubted that Section 48, Civil P.C., does prescribe a period of limitation. The result of Section 48 is that apart from the general provisions of the Limitation Act no decree-holder can successfully prosecute a fresh application for the execution of his decree after the expiry of 12 years from the granting of the decree.
15. I hold therefore that Section 48, Civil P.C., prescribes a period of limitation. In my judgment accordingly the question referred to should be answered in the negative.
Iqbal Ahmad, J.
16. The question of law that has been referred for decision of this Full Bench is:
Whether Section 48 Civil P.C., imposes a complete bar to the execution of a decree after the expiry of the period of twelve years, irrespective of the provisions of Section 15, Limitation Act (9 of 1908).
17. There is considerable, if not bewildering, divergence of judicial opinion on the point and the divergence is due to the varying interpretations put on the word "prescribed" used in Section 15, Limitation Act, and to the conflict on the question as to whether or not Section 48, Civil P.C., prescribes a period of limitation for execution of decrees. It has been held in a number of cases that the word "prescribed" used in various sections of the Limitation Act means prescribed by Schedule 1 to that Act, whereas the view that the word "prescribed" means prescribed by the law for the time being in force has been adopted in other cases. Similarly judicial opinion is divided on the question whether Section 48, Civil P.C., prescribes a period of limitation for the execution of decrees. Clause (1) of Section 15 runs as follows:
In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
18. Section 48 finds a place in Part 2, Civil P.C., and is preceded by the heading "Limit of time for execution." It provides that:
Where an application to execute a decree...has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from (a) the date of the decree sought to be executed....
The rest of the provisions of the Section are immaterial for the decision of the question under consideration. The case has been very ably argued by the learned Counsel for the parties and in the course of arguments reference has been made not only to a large number of judicial decisions but also to the history of the legislation bearing on the question. But in order to avoid confusion, I propose first to examine the question by reference to the relevant provisions of the Limitation Act, 9 of 1908, before dealing with the decided cases. The Limitation Act of 1908 consolidates and amends "the law relating to the limitation of suits, appeals and certain applications to Courts" and consists of five parts and certain Schedules. Part 2 deals with "limitation of suits, appeals and applications" and Part 3 enacts rules for "computation of period of limitation." Part 5 deals with "savings and repeals." The period of limitation for suits, appeals and applications is provided for by the first, second and third divisions of the first Schedule respectively.
19. The word "prescribed" finds a place in Sections 3, 4, 5, 6, 12, 13, 14,15,16, 19, 20 and 29 of the Act, and of these, Sections 3, 4, 5 and 6 are in Part 2. Section 29 is in Part 5 and the remaining Sections are in Part 3 of the Act. In Section 3 the words used are "prescribed therefor by the first Schedule" and in Section 6 "prescribed therefor in the third column of the first Schedule." Similarly, in Section 29 the words used are "prescribed therefor by the first Schedule." In the remaining Sections noted above, the Legislature has omitted to qualify the word "prescribed" by the words "therefor by the first Schedule," and this omission appears to me to be significant and with a set purpose, the purpose being to make, subject to the other provisions of the Act, those Sections in which the word "prescribed" is not followed by the words "therefor by the first Schedule" of universal application. It was argued on behalf of the appellant that as in Section 3 specific reference was made to "the first Schedule" after the word "prescribed" it was unnecessary to repeat the same words in the subsequent Sections of the Act and the word "prescribed" must in all the Sections of the Act be interpreted as meaning prescribed by the first Schedule. I am unable to accede to this argument. If the Legislature intended to use the word "prescribed" in all the Sections of the Act in one and the same sense, viz. as denoting the period prescribed by the first Schedule, nothing would have been easier than to so define that word in Section 2 of the Act and then to use the word "prescribed" in all the subsequent Sections of the Act. To accede to the argument of the appellant's counsel would be to read into numerous Sections of the Act after the word "prescribed" the words "therefor by the first Schedule," words which are not to be found in those Sections, and this would be contrary to the recognized canon of interpretation of statutes. Further, the argument of the appellant's counsel overlooks the fact that in Sections 6 and 29 of the Act after the word "prescribed" reference has expressly been made to the first Schedule.
20. The reason for qualifying the word "prescribed" in Section 6 by the words "therefor in the third column of the first Schedule" becomes manifest by comparing the provisions of Section 6 of the present Act with Section 11 of Act 14 of 1859. Prior to the year 1859 provisions about limitation were contained in various regulations and the first Act that provided "for the limitation of suits" was Act 14 of 1859. By Section 11 of the Act it was provided that:
If at the, time when the right to bring an action first accrues the person to whom the right accrues under a legal disability, the action may be brought...within the same time alter the disability shall have ceased as would otherwise have been allowed from the time when the cause of action accrued....
21. In Section 11 there was nothing to limit the implication of that Section to suits with aspect to which periods of limitation were provided for by the various clauses of Section 1 of the Act and accordingly Section 11 was of general application and applied even to suits not dealt with by the Act. That this is so is clear by reference to various other Sections of that Act, e.g. Sections 13 and 14, in which the words "prescribed by this Act" were used.
22. Act 14 of 1859 was repealed by Act 9 of 1871 and the latter Act was in its turn repealed by Act 15 of 1877. The scheme of these two Acts is identical with the scheme of the present Limitation Act and Schedules were introduced in these Acts for the first time. Whereas the Act of 1859 provided only for the limitation of suits, the Acts of 1871 and 1877 made provision also with respect to appeals and applications. Section 7 of the Acts of 1871 and 1877 corresponds to Section 11 of the Act of 1859 with this material difference that in Section 7 the words "prescribed therefor in the third column of the second Schedule hereto annexed" were used. By the use of these words, the Legislature confined the operation of Section 7 only to suits with respect to which limitation was provided for by the second Schedule of the two Acts. In other words, for reasons better known to itself, the Legislature curtailed the scope of Section 11 of the Act of 1895 by introducing in Section 7 of the two later Acts the words noted above.
23. Section 7 of the Act of 1877 corresponds to Sections 6 and 8 of the present Limitation Act, 9 of 1908. Section 8 is immaterial for our present purposes. In Section 6, the words "prescribed therefor in the third column of the first Schedule" were used by the Legislature with the same object with which similar words were used in the Acts of 1871 and 1877. It follows that when the Legislature m the present Act intended the word "prescribed" to mean only prescribed by the Schedule to the Act, it made its intention clear by qualifying the word "prescribed" with appropriate words. There is therefore no warrant for the contention that the word "prescribed" in all the Sections of the Act must be held to mean prescribed by the second Schedule. This conclusion becomes all the more irresistible when one turns to Clauses (2) and (3) of Section 6. In those Clauses the word "prescribed" was preceded by the word "so" and the word "so" was used to confine the operation of those Clauses to the periods prescribed by the first Schedule. If the contention of the appellant on the point is correct it was wholly unnecessary to use the word "so" in the two Clauses.
24. It is worthy of note that in none of the Sections in Part 3 of the Act which deals with the rules relating to "computation of period of limitation" the word "prescribed" is followed by the words "therefor by the first Schedule" and the reason for this, in my judgment, is that the Legislature intended that the rules as regards the computation of the period of limitation for all suits, appeals or applications must be identical. Apart from authorities I am unable to discover any reason why the rules as to computation of period of limitation laid down in Part 3 of the Act, which rules accord with commonsense, should have been intended by the Legislature to apply only to periods of limitation prescribed by the Schedule and not to periods of limitation provided for by other enactments. It may be argued that if this was so, it was unnecessary for the Legislature to enact Section 29 in the Act, but complete answer to this argument is furnished by reference to the course of legislation on the subject and with this I shall presently deal. An examination of the scheme of the Act with reference to the particular language used in particular Sections of the Act leads me to the conclusion that the word "prescribed" has been used in all the Sections of the Act other than Sections 3, 6 and 29 in a general sense as meaning prescribed by any law whatsoever. I therefore hold that the rule about the exclusion of time laid down by Section 15 of the Act applies to the computation of the period of limitation prescribed for any suit or application for the execution of a decree by any enactment for the time being in force, and I now proceed to deal with the necessity for enacting Section 29 in the present Limitation Act. Section 3 of Act 14 of 1859 provided that when, by any law now or hereafter to be in force, a shorter period of limitation than that prescribed by this Act is specially prescribed for the institution of a particular suit, such shorter limitation shall be applied notwithstanding this Act.
25. The wording of this Section was such as to render it open to doubt whether in the computation of the shorter period of limitation prescribed by any law the rules as to computation laid down by the Act of 1859 could apply. Section 6 of Act 9 of 1871 corresponds to Section 3 of the Act of 1859. Section 6 provided that:
When, by any law not mentioned in the schedule hereto annexed and now or hereafter to be in force in any part of British India, a period of limitation differing from that prescribed by this Act is specially prescribed for any suits, appeals or applications nothing herein contained shall affect such law.
26. Here again the words "nothing herein contained shall affect such law" were general and of wide import and rendered it doubtful whether the general provisions of the Act as regards the computation of the period of limitation, etc. were applicable to cases falling within the purview of Section 6. In Section 6 of the Act of 1877 the provisions of Section 6 of the Act 1871 were re-enacted with one important modification. Instead of the words "nothing herein contained shall affect such law" in the Act of 1871 the words used in Section 6 of the Act of 1877 were "nothing herein contained shall affect or alter the period so prescribed." In other words, by Section 6 of the Act of 1877 it was made clear that nothing contained in the Act will affect or alter the period prescribed by any "special and local laws of limitation" and this provision was re-enacted in Section 29 of the present Limitation Act of 1908.
27. The question whether the application of the rules contained in the Limitation Act as to the computation of the period of limitation, as also of the rule as to the institution of a suit on the re-opening of a Court when the period of limitation expired when the Court was closed, did or did not "affect or alter the period" prescribed by special and local laws arose for consideration in a number of cases and occasioned considerable conflict of judicial opinion. In Behari Loll Mokerjee v. Mungolanath Mokerjee (1880) 5 Cal. 110 it was held that unlike Section 6 of the Act of 1871, Section 6 of the Act of 1877 loaves unaffected only the period of limitation provided by special and local laws and that the rules contained in the Act as to computation of the period of limitation do not "affect or alter" the period of limitation, and as such are applicable to suits provided for by special and local laws. To the same effect are the decisions of the Calcutta High Court in Golap Chand v. Krishto Chunder (1880) 5 Cal. 314, Nijabutoolla v. Wazir Ali (1882) 8 Cal. 910, Khetter Mohan v. Dinabashy Shaha (1884) 10 Cal. 265 and Girjanath Roy v. Ram Narayan Das (1893) 20 Cal. 264. The contrary view was however taken in certain other decisions of the Calcutta High Court including the Full Bench case in Kalimuddin Mollah v. Sahibuddin Mollah (1920) 7 A.I.R. Cal. 14. It was held in the last mentioned case that the provisions of Section 14, Limitation Act, 1908, cannot be applied in computing the period prescribed under Section 77, Registration Act, 1908.
28. The Madras High Court in Kullayappa Mollah v. Sahibuddin Mollah (1920) 7 A.I.R. Cal. 14, held that Section 14, Limitation Act, that provides about the exclusion of the period during which the plaintiff was bona fide prosecuting a suit in a Court without jurisdiction in the computation of the period of limitation applied to suits under the Madras Bent Recovery Act, 8 of 1865. Similarly, it was held in Haji Ismail Sait v. Trustees of the Harbour Madras (1900) 23 Mad. 389 at p. 397, that the rule laid down by Section 4 of the present Limitation Act about the institution of a suit on the day that the Court re-opens when the period of limitation expired during the time that the Court was closed applies to a suit under Section 87, Madras Harbour Trust Act. In Veeramma v. Abhiah (1895) 18 Mad. 99 (F.B.) and Srinivasa Ayyangar v. Secy. of State (1916) 3 A.I.R. Mad. 1093, distinction was drawn between special and local Acts that were complete Code in themselves and those that were not, and it was held that if the special or local Act lays down exhaustive provisions as regards limitation then general Sections of the Limitation Act will not apply to such Acts. The question was again considered by a Full Bench of the Madras High Court in Lingayya v. Chinna Narayana (1918) 5 A.I.R. Mad. 213 and it was held that recourse cannot be had to the general provisions of the Limitation Act, 9 of 1908 in dealing with the admission of petitions and appeals presented after the time prescribed under the provisions of the Provincial Insolvency Act, 3 of 1907 as such recourse would affect the specially prescribed period of limitation by the Provincial Insolvency Act. This decision is in accord with the view taken by the Full Bench of the Calcutta High Court in Kalimuddin Mollah v. Sahibuddin Mollah (1920) 7 A.I.R. Cal. 14.
29. The Bombay High Court in Guracharya v. President of the Belgaum Town Municipalities (1884) 8 Bom. 529 held that the general provisions of the Limitation Act of 1877 are applicable to cases for which periods of limitation are specially provided by local or special laws. The Lahore High Court in Dayal Singh v. Budha Singh (1921) 8 A.I.R. Lah. 26 held that Section 4 of the present Limitation Act did not apply to Letters Patent appeals when the period for filing such appeals expired during the vacation and the appeals were filed on the re-opening of the Court. This decision was based on the ground that the Letters Patent of that Court and the rules framed thereunder constituted a complete Code and therefore Section 4 did not apply. This Court in Beni Prasad v. Dharaka Rai (1901) 23 All. 277, Joti Sarup v. Ram Chandar Singh (1902) A.W.N. 34, Suraj Bali v. H.E. Thomas (1905) 28 All. 48, Dropadi v. Hira Lal (1912) 34 All. 496 and Bhairon Prasad v. S.P.C. Dass (1919) 6 A.I.R. All. 274, applied the general provisions of the Limitation Act as regards the computation of the period of limitation to suits under special enactments. The matter has been considered at length by this Court in Dropadi v. Hira Lal (1912) 34 All. 496 which is a Full Bench decision.
30. It would appear from the review of authorities noticed above that by the year 1920 when the Full Bench case in Kalimuddin Mollah v. Sahibuddin Mollah (1920) 7 A.I.R. Cal. 14 was decided by the Calcutta High Court there was alarming conflict of opinion on the question as to whether the application of the general provisions of the Limitation Act to special and local laws does or does not "affect or alter" the periods of limitation prescribed by those Acts, and confusion was made worse confounded by the distinction drawn between those special and local Acts which constituted so to say complete Code in themselves and those which did not. The I legislature then in the year 1922 set the controversy at rest by amending Section 29 of the Act of 1908 by the Amending Act 10 of 1922. By the amendment it was provided that:
...and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law
(a) the provisions contained in Section 4, Sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law, and
(b) the remaining provisions of this Act shall not apply.
31. The enactment of Section 29 of the present. Act in its present form was rendered necessary not because the word "prescribed" in Part 3 of the Act did not mean prescribed by any law for the time being in force but because certain Courts had held that the application of the general provisions of the Limitation Act laid down in Part 3 to special and local Acts did "affect or alter" the periods of limitation prescribed by those Acts and the Legislature disapproved of those decisions.
32. The judicial opinion is also divided on the question whether the word "prescribed" in the Sections of the Act means prescribed by the Sections or by the Schedule. In Abdul Ghani v. Chiranji Lal (1927) 14 A.I.R. All. 577 a learned Judge of this Court held that "prescribed" was used in a general sense and not in the restricted sense of prescribed by the Schedule. To the same effect is the decision in Sheo Partab Singh v. Tajammul Hussain (1927) 14 A.I.R. All. 114. The contrary view was however taken in Puran Chand v. Abdullah (1938) 25 A.I.R. All. 606, Bai Hemkore v. Masamalli (1902) 26 Bom. 782, Anisuddin Ahmad v. Kalipada Ray (1931) 18 A.I.R. Cal. 785 and Shanti Parkash v. Harnam Das (1937) 24 A.I.R. Lah. 642. In these cases the question was whether an acknowledgment made at a time when the period prescribed by the Schedule to the Act had expired, but the time for the institution of the suit still remained because the period of limitation expired when the Court was closed, was a valid acknowledgment so as to give a fresh start to the period of limitation, and the question was answered in the negative because it was held that Section 4 of the present Act, does not prescribe a period of limitation. But I am unable to agree with these decisions in so far as they lay down that the word "prescribed" means prescribed only by the Schedule. Section 31, Limitation Act, that allowed a period of two years from the date of the passing of the Act of 1908 for the institution of suits for foreclosure or for sale by a mortgagee, was construed by this Court in Hira Singh v. Mt. Amarti (1912) 34 All. 735 and Sheo Partab Singh v. Tajammul Hussain (1927) 14 A.I.R. All. 114 and by the Full Bench of the Madras High Court in Suryanrayana Rao v. Venkatraju (1935) 22 A.I.R. Mad. 64, as prescribing a period of limitation and accordingly Section 4 and Sections 19 and 20, Limitation Act, were held applicable to suits filed in accordance with the provisions of Section 31. These decisions are in conflict with the cases in which it was held that "prescribed" means prescribed by the Schedule only.
33. For the reasons that I have given at the inception of this judgment, I am of the opinion that there is no warrant in the Act itself for putting a restricted meaning Ion the word "prescribed" in Section 15 of the Act and accordingly the rule laid down in that Section as to the computation of the period of limitation must apply to all suits and applications for execution of decrees even though the period of limitation for the same may be provided not by the Schedule to the Act but by some other law for the time being in force, and the view that I take finds support from the decisions of the Madras High Court in Venkata Perumal v. Velayuda Reddi (1915) 2 A.I.R. Mad. 449 and Harish Chandra v. Mt. Kastola Kunwar (1925) 12 A.I.R. All. 68. It follows that if Section 48, Civil P.C., prescribes a period of limitation for an application for the execution of a decree it is subject to the provisions of Section 15, Limitation Act.
34. The question then arises whether Section 48 does prescribe a period of limitation. This question was answered in the negative in Jurawan Pasi Mahabir Dube (1918) 5 A.I.R. All. 216, and by one of the learned Judges who decided the case in Subbarayan v. Natarajan (1922) 9 A.I.R. Mad. 268, and by the Oudh Chief Court in A I E 1931 Ganeshi Lal v. Imtiaz Ali (1931) 18 A.I.R. Oudh 351. The observations of Kulwant Sahay J. in Kirtyanand Singh v. Pirthichand Lal (1929) 16 A.I.R. Pat. 597 are also to the effect that Section 48, Civil P.C., is not controlled by Section 15, Limitation Act, but these observations were in the nature of obiter dicta. The contrary view has been taken by the Bombay High Court in Rango Ramcharya v. Gopal Narayan (1939) 26 A.I.R. Bom. 75 and it was held in that case that Section 48, Civil P.C., does prescribe a period of limitation and that Section 15, Limitation Act, applies so as to extend the period prescribed by Section 48, Civil P.C. After giving the question my best consideration I have arrived at the conclusion that Section 48, Civil P.C., prescribes! a period of limitation and this in my judgment is put beyond doubt by a reference to Articles 181 and 182 of Schedule 1 to the Limitation Act. Article 181 deals with applications for which no period of limitation is provided elsewhere in this schedule or by Section 48, Civil P.C., 1908.
35. This Article speaks of Section 48, as providing a period of limitation. Similarly, Article 182 prescribes the period of limitation, for the execution of a decree or order of any Civil Court not provided for...by Section 48, Civil P.C., 1908.
36. This clearly means that Article 182 applies to those applications for execution to which Section 48, Civil P.C., does not apply. In other words, an application for execution has first to cross the bar of Section 48, before it can fall within the purview of Article 182. To put the matter in a different way : when an application for execution is made beyond 12 years from the date of the decree it would be rejected as offending against the provisions of Section 48. But if the application is made within the period prescribed by Section 48 then it will be governed by Article 182. There is, therefore, no escape from the conclusion that like Articles 181 and 182, Section 48, Civil P.C., also prescribes a period of limitation and this conclusion finds support from the sub-heading "Limit of time for execution" which precedes Section 48. Section 48 no doubt forbids the passing of an order for the execution of a decree more than 12 years old, but this means no more than this, that the time limit for the execution of a decree is 12 years. To hold that Section 48, Civil P.C., does not prescribe a period of limitation and is not subject to the rules laid down by Section 4, and by Part 3, Limitation Act, would lead to startling results. It may very well be that the 12 years may expire at a time when the Court is closed and in such a case it would manifestly be unjust to dismiss an application for execution that is filed on the day that the Court re-opens. Again, take a case in which a Hindu son files a suit assailing the validity of a decree passed against his father and the family property and execution of the decree is stayed by an injunction and litigation does not terminate for a period of 12 years. On what principle can the Court in such a case refuse to execute the decree after the period of 12 years passes my comprehension.
37. For the reasons given above, I respectfully dissent with the decisions in which it has been hold that Section 15, Limitation Act, has no application to Section 48, Civil P.C. In Phoolbas Koonwar v. Lalla Jogeshur Sahoy (1875) 1 Cal. 226, it was held by their Lordships the Privy Council that the limitation of nne year provided by Section 246, Civil P.C. 1859, was subject, in the case of a minor, to be modified by Sections 11 and 12 of Act 14 of 1859. In that case, their Lordships made the following observations:
The two statutes were passed in the same year, the assent of the Governor-General being given to Act 8 on 22nd March, to Act 14 on 4th May 1859. The object of the first was to enact a general Code of Procedure for the Courts of Civil Judicature not established by Royal Charter. The object of the second was to establish a general law of limitation in supersession both of the Regulations which had governed those Courts and of the English Statutes which had regulated the practice of the Courts; established by Royal Charter. Looking to Sub-section 5 of Section 1, and Sections 3 and 11 of Act 14 of 1859, their Lordships have no doubt that the intention of the Legislature was that the period of limitation resulting from Section 246 of Act 8 should, in the case of a minor, be modified by the operation of Section 11 of Act 14; and that this construction has obtained in the Courts of India appears from the case in Huro Soonduree v. Annundnath Roy (1865) 3 W.R. 8.
38. It is to be noted that in 1877 both the Civil Procedure Code and the Limitation let of that year were passed and the Civil Procedure Code and the Limitation Act that are in force now were passed in the came year, viz. in the year 1908. Having regard to the observations of their Lordships of the Privy Council noted above, the two Acts must be read together and must be treated as complimentary of each other. For the reasons given above, I agree that the answer to the question referred to this Bench must be in the negative.
Bajpai, J.
39. The question involved in this case has been referred to a Full Bench and it is:
Does Section 48, Civil P.C. impose a complete bar to the execution of a decree after the expiry of the period of 12 years irrespective of the provisions of Section 15, Limitation Act?
40. The facts are that the respondents before us obtained a final mortgage decree on 19th May 1922 against the appellant and his father. An application for execution of this decree was made on 8th May 1925 within three years. Suit No. 171 of 1926 was filed by the son of the appellant for a declaration that the mortgage which was the basis of the decree was not for legal necessity and therefore the property covered by the decree being ancestral property was not liable to sale in execution. The suit was dismissed by the trial Court on 23rd May 1927 and then there was a first appeal in the High Court. During the pendency of the first appeal, an application was filed for the issue of an injunction restraining the decree-holders from selling the property and the injunction was granted. The first appeal was dismissed by this Court in November 1932. The injunction, therefore, remained in force for very nearly five years the High Court having directed the stay of execution proceedings on 26th November 1927. The execution petition that was filed on 8th May 1925 remained pending all through but it was dismissed for want of prosecution in February 1936 by the Civil Court and then the present application for execution was filed on 20th October 1936 and the judgment-debtor objected that the provisions of Section 48, Civil P.C., operated as a complete bar inasmuch as the decree sought to be executed was passed on 19th May 1922 and a former application for execution was made on 8th May 1925 and thus no order for the execution of the same decree could be made upon any fresh application presented after the expiration of 12 years from the date of the decree sought to be executed.
41. The question is not free from difficulty, but after having heard the able and exhaustive arguments of learned Counsel for the parties, I have come to the conclusion that the decree-holders are entitled under Section 15, Limitation Act, to exclude from the period of 12 years prescribed by Section 48, Civil P.C., a period of about 5 years during which the execution of the decree was stayed by an injunction passed by the High Court. It is obvious that if this time is excluded the application of the decree-holders made on 20th October 1936 is within time. Section 15(1), Limitation Act, says:
In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn shall be excluded.
42. The first question that one has got to determine in a matter like this is whether the word 'prescribed' used in Section 15, Limitation Act, means 'prescribed by the first Schedule of the Limitation Act' or means 'prescribed anywhere either in the Limitation Act or in any other Act, local, special or general,' and the second question is whether Section 48, Civil P.C., prescribed any period of limitation. Rules of procedure regulating the Civil Courts and rules for limitation were introduced in various Provinces by means of regulations beginning from the year 1793, and it was only in 1859 that the Civil Procedure Code and the Limitation Act were brought on the Statute Book by means of two enactments, but even then in the Limitation Act there was no division, such as we find now, of Sections and Articles. It was only in 1871 that the Limitation Act was divided into two parts, the first one consisting of Sections and the second of Articles, and the Civil Procedure Code was also amended the same year by Act 32 of 1871. A new Limitation Act was introduced in 1877 and a new Civil Procedure Code was also enacted the same year, and it was in 1877 for the first time that Section 230 corresponding to Section 48, Civil P.C., was enacted. There was another Civil Procedure Code in 1882. The Civil Procedure Code with which we are concerned today is Act 5 of 1908 and the Limitation Act with which we are con-earned today is Act 9 of 1908.
43. The above history will show that the Legislature dealt with the Civil Procedure Code and with the Limitation Act more or less simultaneously whenever occasion arose to introduce amendments in the two branches of law or to consolidate them. There can be no manner of doubt that both Acts tire general Acts and both Acts are in pari materta. Dealing with the Civil Procedure Code and the Limitation Act of 1859, their Lordships of the Privy Council in Phoolbas Koonwar v. Lalla Jogeshur Sahoy (1875) 1 Cal. 226 observed at page 242:
The two Statutes were passed in the same year the assent of the Governor-General being given to Act 8 (Civil P.C.) on 22nd March, to Act 14 (Limitation Act) on 4th May 1889. The object of the first was to enact a general Code of Procedure for the Courts of Civil Judicature not established by Royal Charter. The object of the second was to establish a general law of limitation in supersession both of the Regulations which had governed those Courts and of the English Statutes which had regulated the practice of the Courts established by Royal Charter.
44. In Balmukund v. Basanta Kumari (1925) 12 A.I.R. Pat. 1 at page 8 Das J. said:
The Code of Civil Procedure and the Limitation Act are the two great procedural Codes in India and they were amended in the same year and were to come into operation on the same day. They are statutes in pari materia and are to be taken together as forming one system, and an interpreting and enforcing each other : see Palmer's case (1784) 1 Leach C.C. (4th Edn.) 355.
45. The Civil Procedure Code of 1908 received the assent of the Governor-General on 21st March 1908 and the Limitation Act received the assent of the Governor-General on 7th August 1908 and both Acts came in force from 1st January 1909. It is then curious that whereas the word "prescribed" is defined in the Civil Procedure Code of 1908, Section 2(16), as meaning "prescribed by rules," the word "prescribed" is not defined by the Limitation Act of 1908. There was nothing easier than to say in the Limitation Act that "prescribed" means "prescribed by the first Schedule of the Limitation Act," if the intention of the Legislature was to limit the otherwise general word "prescribed." One cannot be on very sure grounds by basing a decision of the changes introduced by the Legislature, but I think I can safely draw the inference that if the Legislature intended to circumscribe the meaning of the word "prescribed" used in the Limitation Act to what has been prescribed in the Schedule then the Act would have defined the word "prescribed" somewhere in the definitions Section, namely Section 2 of the Act. There had been a great deal of controversy on this point in various High Courts before 1908, and for this reason also one would have expected the Legislature to define the word "prescribed" in the Limitation Act if it was intended to limit its application only to the first Schedule of the Limitation Act. So far as this Court is concerned, in 1912, a Full Bench in Dropadi v. Hira Lal (1912) 34 All. 496, held that the Provincial Insolvency Act was a special law within the meaning of Section 29, Limitation Act, but, inasmuch as it was not in itself a complete Code, there was nothing to prevent the application thereto of the general provisions of the Limitation Act and that such general provisions did not "affect or alter" the period prescribed by a special law, but only the manner in which that period was to be computed.
46. It is therefore clear that their Lordships applied the general provisions of the Limitation Act to the Provincial Insolvency Act, and I am in complete agreement with this view of the law. It might be mentioned that in the above-mentioned case, Section 12, Limitation Act, was applied to the Provincial Insolvency Act. It is true that Section 29, Limitation Act, was amended by the Limitation Amendment Act, 10 of 1922, and now only some of the general provisions of the Limitation Act, namely Sections 4, 9 to 18 and Section 22 apply to special and local laws and only in so far as and to the extent to which they are not expressly excluded by the special or local law which may be under consideration, but in 1912, Section 29 read as follows:
Nothing in this Act shall aspect or alter any period of limitation specially prescribed for any suit, appeal or application by any special or local law now or hereafter in force in British India.
47. This amendment of 1922 has set at rest a great deal of controversy as to the application of Section 29, Limitation Act, but the Full Bench case in 34 All 4961 held that the general provisions of the Limitation Act applied to special and local Acts if they were not complete Codes, and then there can be no warrant for holding that the same general provisions do not apply to a general Code. Section 6 of the present Limitation Act which deals with the cases of minors, lunatics and idiots and provides for the exclusion of the time during which the legal disability continues has been limited expressly, and it is provided that where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the period of limitation is to be reckoned a minor, or insane or an idiot, he may Institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule, and it is noticeable that Sections 6 to 8 which deal with legal disabilities have not been made applicable by Section 29 to special and local laws. Apart therefore from those provisions of the Limitation Act which have been expressly limited in their operation, there is no warrant for holding that any general provision of the Limitation Act must be limited to the period prescribed by Schedule 1 and the word "prescribed" means "prescribed by any law for the time being in force" as was held in Harish Chandra v. Mt. Kastola Kunwar (1925) 12 A.I.R. All. 68.
48. The next question that one has got to decide is whether Section 48, Civil P.C., prescribes a period of limitation. It is true that this Section fixes a limit of time for execution and enacts that no order for execution shall be made upon an application presented after the expiry of 12 years from certain specified dates, if a former application has been made. The object undoubtedly is to prevent judgment-debtors from being harassed indefinitely, for decree-holders are expected to proceed with diligence; but this does not mean that Section 48, Civil P.C., does not prescribe a period of limitation. The Section is headed as "Limit of time for execution" and in Sub-clause 2(b) of the Section there is a special mention of Article 180 of the second Schedule to the Limitation Act of 1877. The obvious meaning of this is that the period of limitation prescribed by Section 48, Civil P.C., shall not in any way affect the period of limitation prescribed by Article 180 of the second Schedule to the Limitation Act of 1877 (which now corresponds to Article 183 of the first Schedule to the Limitation Act, 1908). It is almost axiomatic that the Articles in the first Schedule of the Limitation Act which have three main divisions, suits, appeals and applications, provide that suits, appeals and applications filed after the period of limitation prescribed in the second column from the time mentioned in the third column shall be dismissed in view of Section 3, Limitation Act. Articles 181 and 182, Limitation Act, make a special mention of Section 48 and one would not have expected a reference to Section 48 in an Article of the Limitation Act which ex hypothesi imposes a period of limitation, if Section 48 also did not impose one. There is a reference to Article 183, Limitation Act of 1908, in Section 48 and there is a mention of Section 48 in Articles 181 and 182, Limitation Act, and this makes it clear that Section 48, Civil P.C., prescribes a period of limitation. If I were to paraphrase Article 181, Limitation Act, and read it in conjuction (as indeed it must be so read) with Section 3, Limitation Act, I should paraphrase the first column as applications for which no period of limitation for the purpose of dismissal is provided elsewhere in this Schedule or by Section 48, Civil P.C.
49. Apart therefore from authorities, I have come to the conclusion that Section 48, Civil P.C., prescribes a period of limitation. In Jurawan Pasi Mahabir Dube (1918) 5 A.I.R. All. 216 at p. 203, where the question of applying Section 15, Limitation Act, to Section 48, Civil P.C., arose, the learned Judges said : "Section 48, Civil P.C. does not in a strict sense provide a 'period of limitation'," but this observation is more or less obiter and has got to be read in connexion with the special facts of that case. The force of this observation has to a great extent been frittered away by the case in Shiam Karan v. Collector of Benares (1919) 6 A.I.R. All. 64, where Section 15, Limitation Act, was held applicable to Clause 3, para. 11 of the third Schedule to the Civil P.C., 1908, and in this case, while considering the case in Jurawan Pasi Mahabir Dube (1918) 5 A.I.R. All. 216, their Lordships said:
No doubt, in a strict sense Section 48 does not prescribe a period of limitation, but in a general sense it imposes a 'limitation' on the right of the decree-holder to apply for execution after the expiry of 12 years from the date of the decree. In that general sense, although by Section 48 a 'period of limitation' strictly so called is not prescribed, the 12 years rule in effect lays down 'the period of limitation' applicable to an application for execution.
50. In Subbarayan v. Natarajan (1922) 9 A.I.R. Mad. 268 it was held that Section 48, Civil P.C., contains an unqualified prohibition [subject to exceptions contained in Clause (2) thereof] against execution of certain kinds of decrees more than 12 years old and is not controlled by Section 15(1), Limitation Act. But the learned Judges who constituted the Bench gave separate judgments and whereas Spencer J. held that the word 'prescribed' used in Section 15, Limitation Act, means prescribed by Schedule 1 to the Act, Ramesam J. held that the provisions of the Limitation Act are intended to govern the Civil Procedure Code which is a general Act; and it cannot therefore be laid down as a rule that Sections 4 to 25 of the Act do not apply to the Code. Ramesam J. then held that the period mentioned in Section 48, Civil P.C., was not a period of limitation in the strict sense of the term and consequently Section 15, Limitation Act, was not applicable to it. From what I have said above, I hold the view that Section 48, Civil P.C., does provide a period of limitation to which Section 15, Limitation Act, would be applicable. In Phoolbas Koonwar v. Lalla Jogeshur Sahoy (1875) 1 Cal. 226, referred to above, their Lordships of the Privy Council applied a general provision of the Limitation Act to a period of limitation prescribed in the Civil Procedure Code and to a certain extent this case has an application to the facts of the present case. I do not find it necessary to discuss the numerous other cases that were cited before us at the Bar.
51. The effect of Section 48, Civil P.C., is that although by successive applications made within three years one after another the decree-holder might keep his decree alive indefinitely he will be precluded from obtaining an order for the execution of his decree upon a fresh application presented after the expiration of 12 years from the various dates specified in Section 48, Civil P.C., and to that extent Section 48 imposes a salutary check and requires diligence from those who wish to reap the fruits of their decree. But if the general provisions contained in the Limitation Act for the computation of the period of limitation (with the exception of course of Sections 6 to 8 which apply only to the periods of limitation prescribed in the Schedule of the Limitation Act) do not apply to Section 48, Civil P.C., it is possible to think of an extreme case where the decree-holder may be seriously prejudiced for no fault of his, whereas if they do apply the judgment-debtor is not prejudiced in any way when in computing the period of limitation certain time is excluded, time which in the case of an injunction has been wasted because of the action of the judgment-debtor or some one having the same interest as the judgment-debtor and time which in other cases ought to be excluded because of the actions and exigencies of the Court or bona fide mistakes of the decree-holder. For the reasons given above, my answer to the question referred to the Full Bench is that the provisions of Section 15, Limitation Act, apply to Section 48, Civil P.C.
52. The answer to the question referred is as follows, viz : Section 48, Civil P.C., does not impose a complete bar to the execution of a decree after the expiry of the period of 12 years irrespective of the provisions of Section 15, Limitation Act.