Abdul Kadir Rowther and Another vs Krishna Malamal Nair Karnavan and Managar of the Tarwad

Sadasiva Aiyar, J.—Unless the oral application for an adjournment of the hearing of a previous execution petition, made by the decree-

holder on the 7th August 1908 is held to be an application to take a step in aid of execution, the present execution application of 3rd July 1911 is

clearly barred by limitation. The question is not free from difficulty. In Kartick Nath Pandey v. Jaggannath Ram Marwari ILR (1899) C. 285 there

is an obiter dictum showing that an application for adjournment to enable the decree-holder to conduct his petition further with effect is not an

application to take a step in aid of execution. A different view was taken in Mowar Narasingh Dayal Singh v. Mowar Kalicharan Singh (1910) 14

C.W.N. 486 where the point directly arose.

The learned vakil for the judgment-debtors (appellants before us) sought to distingush Mowar Narasingh Dayal Singh v. Moivar Kalicharan

Singh (1910) 14 C.W.N. 486 from the present case on two grounds.

(a) That the application for adjournment relied on in Mowar Narasingh Dayal Singh v. Mowar Kalicharan Singh (1910) 14 C.W.N. 486 was in

writing and not oral. (b) That the application in that case was an application for an adjournment to enable the decree-holder to produce an affidavit

as evidence to carry on those execution proceedings further whe reas it was not so in the present case.

I think that neither of these contentions is sound. There is nothing in Article 179 of the Limitation Act which requires the application to take some

step in aid of execution to be in writing. Amar Singh v. Tika ILR (1880) A. 139 and Manekklal Jagjivan v. Nasia Radha (1890) 15 B. 405 are

direct authorities to the contrary and I am prepared to follow them. Then as regards the other distinction sought to be made I am unable to see that

the application for an adjournment to enable the decree-holder to produce affidavit evidence in aid of further proceedings (which was the

application in Mowar Narsingh Dayal Singh v. Mowar Kali Chan Singh (1910) 14 C.W.N. 486 stand son a better footing than an application for

an adjournment to enable the decree-holder to produce an encumbrance certificate in respect of the attached property in aid of further proceedings

in execution. Then reliance is placed by the appellant''s vakil on the reason given in the obiter dictum in Kartick Nath Panday v. Jaggirnath Ram

Marwari (1899) 2 7 Cal. 285 . That reason is that an application for adjournment is in retardation of the execution proceedings and not in aid of

the execution proceedings. I think there is a fallacy in this reasoning. When an application for adjournment is made by the judgment-debtor, it is

almost invariably to retard the execution proceedings. As regards an application by the decree-holder it may be one of three things. (a) It may be

to get an order in aid or (b) It may be to get an order in retardation or (c) It may be to get an order which is neither. An application by the decree-

holder to give time to the judgment-debtor merely as a matter of grace is a step in retardation. An application for an adjournment to enable the

decree-holder to produce records or evidence necessary to effectively conduct the execution proceedings further will be an application to get an

order in aid. Seshadasa Charya v. Bhimacharya ILR (1912) B. 317 S.C. 14 B.L.R. 1204 Haridas Nanabhai v. Vittaldas Kisandas ILR (1912) B.

638 Pitam Singh v. Tota Singh (1907) L.R. 29 All. 301 and Kunhi v. Seshagiri ILR (1882) M. 141 . An application by the decree-holder to draw

money deposited in court or to obtain copies of sale lists (without anything to indicate that they were necessary to aid further execution) will be an

application neither in aid nor in retardation. In the present case, I think that the application for an adjournment was for an order in aid. I think that

the legislature is a little harsh on decree-holders in fixing the date of applying for execution as one of the starting points, for limitation for calculating

the 3 years'' period for the next subsequent application in execution instead of the date on which the proceedings in the previous application for

execution terminated, and I should be glad if the Limitation Act is amended so as to fix the latter date. But the harshness is mitigated to some extent

by allowing the date of applying to take a step in aid to be also a starting point and I think that if even an oral application is really for an order

which will be a step in aid (and not merely for an order which will be indifferent or retarding) a liberal interpretation should be put on Article 179 so

as to enable the decree-holder to obtain the fruits of his decree.

In the result I would dismiss the appeal with costs.

Spencer, J.

I concur.