JUDGMENT Salaiman and Gokul Prasad, JJ.
1. This appeal has been referred to a Division Bench, as the learned Judge before whom it originally came on for hearing doubted the correctness of the rule of law laid down in Lakhrani Kuar v. Dhanraj Singh (1916) I.L.R. 38 All. 509. As all the authorities did not seem to have been laid before us in argument we took time to consider our judgment.
2. It appears that in 1905 the present plaintiffs brought a suit against these very defendants to pre-empt the property which is now in dispute. On the 28th of April, 1905, a compromise decree was passed, according to which the plaintiffs were to obtain possession of the property if they paid Rs. 1,000, within three months of the decree; in case of default the suit was to stand dismissed. The plaintiffs paid that amount within the specified period, but did not obtain possession either through the court or privately. On the 25th of April," 1917, long after the period of limitation for an application for execution had expired, but within twelve years of the decree, the plaintiffs instituted the suit out of which this appeal has arisen for recovery of possession of the property decreed to them previously. The court of first instance, after much hesitation, felt bound to follow the case referred to above and decreed the suit. The lower appellate court has refused to follow it in view of certain observations made in the Letters Patent appeal from it. In that case a single Judge of this Court had held "the plaintiff while in possession of the land in question was wrongfully dispossessed by the defendant and I hold that the plaintiff is entitled to succeed on that ground." This was perfectly correct. He, however, went on to hold that even apart from that the plaintiff was entitled "to sue and succeed" upon the previous decree.
3. In an appeal under the Letters Patent, Dhanraj Singh v. Lakhrani Kuar (1916) I.L.R. 28 All. 409 it was held that the plaintiff having got actual possession, though out of court, and having been subsequently dispossessed, was entitled to bring a fresh suit. The learned Judges, referring to the view that it is always open to a decree-holder to bring a suit on the decree at any time within twelve years, notwithstanding that the decree has become incapable of execution by lapse of time, remarked: "This dictum, if correct, would mean that suit after suit could be brought upon barred decrees. If this is correct law, it is a very alarming situation." They were inclined to hold that Section 47 of the Code of civil Procedure would be a bar to such a suit, but did not think it necessary to say anything further, as the point was not necessary for the decision of that case and the question had not been fully argued before them.
4. There can be no doubt of the general principle that "where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises pay that sum, on which an action of debt to enforce the judgment may be maintained"; per Baron Parke in Williams v. Jones (1845) 67 R.R. 767. The same principle was recognized in Civil Law, where the action founded on the prior judgment was known as the actio judicata. Such an action may be treated as another form of execution, but the Legislature may prohibit it and prefer the more summary method. We must, therefore, examine the provisions of the Code of Civil Procedure and also review the authorities in order to see how these provisions have been interpreted and applied.
5. The case of Doobee Singh v. Jowkee Ram N.W.P.H.C. Rep. 1868,381 may be put down as the earliest authoritative case of our own province, There the plaintiffs had obtained a decree awarding to them one half of an orchard and directing possession to be given to there They remained inactive for upwards of three years, and then brought a fresh suit for possession. A Full Bench of five Judges enunciated the Law as follows: "Where a decree is merely declaratory and does not require to be carried into effect by process of execution, the tight thereby declared and ascertained exists independently of any process for enforcing it. But when the nature of the decree requires that it should be executed, a decree holder cannot, after allowing the limitation period to lapse Without issuing process of execution, seek by a fresh suit on the decree to obtain that which lie should have sought for by execution."
6. In Ram Jus Rae v. Ram Narain N.W.P.H.C. Rep. 1870, 382, two out of the three Midges re-affirmed the same principle and held that Section 11 of Act XXIII (to which Section 47 of the present Code corresponds) We taken away the sight of a decree-holder to recover in a Subsequent suit founded on his decree what he could enforce by execution in the ordinary way.
7. In Sheikh Ghulam Hosein v. Musammat that Alla Rukhee Beebee N.W.P.H.C. Rep. 1871, 62 the same principle was even extended to a redemption suit. A Full Bench of five Judges again laid down that where by a former adjudication persons became entitled to a remedy by process of execution for the recovery of possession, and by their own neglect they have lost this remedy, they cannot be permitted to revert to the position which they held prior to the institution of that suit and to ask for a remedy by suit. The provisions of Section 60 of the Transfer of Property Act have perhaps made the principle no longer applicable to redemption suits, vide Sita Ram v. Madho Lal (1910) I.L.R. 24 All. 44; but we have not been able to find any recent case of our own High Court in which the soundness of that principle has been doubted.
8. The Madras Sigh Court has adhered to the same view. In the case of K. Sanjeeviyah v. Nanjiyah (1869) 4 Mad. H.C. Rep. 453 it was held that a suit does not lie to enforce a liability specifically imposed by the decree of a Civil Court in the mofassil, the right of suit in such a case being taken away by Section 11 of Act XXIII of 1861. in the case of Muttuvelu Pillai v. Vythilinga Pillai (1870) 5 Mad. H.C. Rep. 185 it was laid down that that section takes away from the parties the right to try, by a fresh suit, any question relating to the enforcement of the terms of the decree by process of execution, and, in accordance with the whole policy of the law of procedure, makes every such question determinable by an order in a summary proceeding before the same court in the course of execution. And the same principle was followed in the case of Rangan Asary v. Shappani Asary (1870) 5 Mad. H.C. Rep. 375 and in the case of Sungara Narayana Pillay v. Sandira Pillay (1870) 6 Mad. H.C. Rep. 13. In the full Bench case of Periasami Mudaliar v. Seetharama Chittiar (1903) 6 Bom. H.C.R. 231, which was not a case of a suit on a judgment, but one to enforce a Hindu son's pious obligation to discharge his father's debts, it was, however, observed on page 249 that "as against the judgment-debtor - himself or against his legal representative (who, as such, is equally bound by the judgment) it has long been held that under the Indian processual law the remedy is only by way of execution of the decree, and that no suit could be brought upon the Judgment.
9. Following the old English practice of entertaining suits on judgments of the county courts, a practice at one time grew up in Bombay under which suits on judgments of Small Cause Courts were allowed, till this had to be put a stop to after the enactment of Section 94 of Act XV of 1882. But as for suits on decrees of an ordinary Civil Court the Bombay High Court does not appear to have permitted them. In the case of Mancharam Kalliandas v. Bakshe Saheb (1869) Bom. H.C.R. 231 a suit for possession which had been granted by an unexecuted decree was held' not to be maintainable, In the case of Kisan Nandram v. Anandram Bachaji (1878) 10 Bom. H.C.R. 433 the plaintiff's father had obtained a decree for possession which, however, was never executed. It was held that the remedy by a separate suit was barred by Section 11 of Act XXIII of 1861. In the case of Sayad Nasrudin v. Venkatesh Prabhu (1879) I.L.R. 5 Bom. 382 it was remarket that Section 11 of Act XIII of 1881, and the decisions under that section, seem to shut a plaintiff, who has failed to obtain execution of a decree in his favour, from making that decree the basis of a further suit or from obtaining, any means of a subsequent suit, that which, by adopting the proper means, he might have obtained in execution; and that the recognition of such suits would tend to prolonged and possibly endless litigation, and so defeat the purpose of the Limitation Act. In the case of Fakirapa v. Pandurangapa (1881) I.L.R. 6 Bom. 7 it was pointed out that the practice of the Bombay High Court to entertain suits upon judgments of Courts of Small Causes was peculiar and too long to be disturbed, though-it might have been better if such a practice had never been initiated; that it was perhaps based on the fact that the Code of. Civil Procedure, with a few unimportant exceptions, had not been' applied to the Bombay Court of Small Causes; but that no suit would lie upon a decree the execution of which was barred be limitation. In the case of Merwanji Nowroji v. Ashabai (1883) I.L.R. 8 Bom. 1 it was decided that ever before the prohibition contained in Section 94 of Act XV of 1882, a judgment-creditor in the Court of Small Causes had not the right to sue on his judgment, and that the provisions of the code of Civil Procedure preclude a judgment in a court regulatory that Code being enforced by a separate suit.
10. The Calcutta High Court, though formerly upholding the view that no suit on a judgment lies, has subsequently gone back the other way. In the case of Sandes v. Jomir Shaikh (1868) 9 W.R.C.R. 399 it was held that a suit cannot be maintained in a Small Cause Court to recover the unsatisfied balance of a decree of such court. This was followed in the case of Moonshi Golam Arab v. Curreembux Shaikjee (1879) I.L.R. 5 Calc. 294 where it was held that no suit would lie in the High Court on a decree of the Court of Small Causes, A dissenting apparently for the first time, was struck by Wilson, J. in Attermoney Bosses v. Hurry Doss Dutt (1881) I.L.R. 7 Calc. 74. The learned Judge held that as a general rule a suit lies upon as decree, unless the right is taken away by Statute, and that in his opinion there was nothing in Act X of 1877 to prevent such a suit. It is unfortunate that this case was decided ex parte, there being no one on behalf of the respondent to present the, contrary view. Neither Section 244(c) of Act X of 1877 nor the previous cases seem to have been brought to his notice. This case was followed by another single Judge of the Calcutta High Court in Annoda Prasad Banerjee v. Nobo Kishore Roy (1913) 18 C.L.J. 362, There a suit on an order of the Insolvency Court for payment of costs was held to be maintainable, on the ground that Section 244 of Act XIV of 1882 was inapplicable, and that the suit must be held to have been based on a new cause of action as afforded by the previous judgment. In the case of Ashi Bhusan Dasi v. Pelaram Mandal (1913) 18 C.L.J. 362 a decree had been obtained against an alleged adopted son (as the representative of the wrong-doer) under the guardianship of the deceased's widow, but the adoption was found in another suit to be invalid. Mukerji, J., threw out a Suggestion that "the remedy of the decree-holder might possible be by way of a suit against (the widow) if it be still open to him to sue her successfully in view of the provisions of the Statute of Limitation." In the case of KaliKanand Mukerji v. Biprodas Pal Choudhri (1914) 19 C.W.N. 19 one of the defendants having died a co-defendant was substituted in his place as his legal Representative, and, the plaintiff haveing refused to make the, widow a party, the suit was decreed. In subsequent litigation was found that the widow of the deceased was his successor and legal representative, The plaintiff being unable to execute his decree, as the deceased's estate was in the possession either widow brought a suit for a declaration that the estate. Was in the possession was liable to pay the decretal amount. It was held; that the suit was not maintainable as a suit on a judgment. The case of Kali Charan Nath v. Sukhoda Sundari Debi (1915) 20 C.W.N. 58 was a suit for recovery of money. The defendant died during its pendency, leaving a will whereby he had appointed the wives of his sons executrices to his estate; the plaintiffs, being unaware of the existence of the will, substituted his sons in his place and got a decree. It was held that the executrices were not bound by the decree and the decree could not be executrices against the estate in their hands. The learned Judges went on, however, to remark: "At the same time, it is clear that a suit can be brought against the executrices on the basis of the judgment already obtained," and referred to a number of English and Indian cases, pointing out some divergence of judicial opinion on the matter.
11. It will be noticed that in both the cases in Ashi Bhusan Dam v. Pelaram Mandal (1913) 18 C.L.J. 862 and Kali Charan Nath v. Sukhoda Sundari Debi (1915) 20 C.W.N. 58 the remarks of the learned Judges. on the point were purely obiter dicta and wholly unnecessary for the disposal of those cases. Further, those cases are distinguishable, inasmuch as in each the decree could not possibly be enforced, the real heirs of the deceased not being a party to it. These cases can, therefore, be no authority for the proposition that a second suit on a judgment is maintainable in spite of the provisions of Section 47 of the Code of Civil Procedure.
12. We have given our best consideration to the question before us and we are of opinion that, both on authority and on a correct interpretation of Section 47 of the Code of Civil Procedure, the present suit was not maintainable. Stripped of all unnecessary, details, the relief claimed by the plainbid's, in substance, amounts to asking for the fruits of a decree which they are unable to execute owing to lapse of time. The suit, in effect, does raise a question "relating to the execution, discharge or satisfaction" of, the former decree and cannot be determined by a separate suit. The plaintiffs claim in reality is that they obtained a decree for possession of this property, the defendants have not given them possession in spite of the said decree, and therefore the court should compel the defendants to carry out their obligation under that decree, In our opinion such a suit falls clearly within the purview of Section 47, and if it did not, we fail to see what other form of suit would.
13. We may note that Article 122 of the Limitation Act can in no way help the plaintiffs. As was observed in the case of Hurrinath Chatterji v. Mohunt Mothoor Mohun Goswami (1893) L.R. 20 I.A. 183 (192), the intention of the law of limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right. In fact the Limitation Act assumes the existence of a cause of action and does not define or create one.
14. We think that the decree of the lower appellate court was under the circumstance correct, We accordingly dismiss the appeal with costs.