Daya Kishan vs Nanhi Begam and Others

John Edge, C.J. and Banerji, J.—This appeal arises out of proceedings taken for the execution of a decree. A decree for sale was made u/s 88 of the Transfer of Property Act, 1882, on the 31st of March 1891. An order absolute for sale was made on the 17th of December 1892, u/s 89 of that Act. On the 23rd of January 1893, an application for execution was made. On the 1st of July 1893, the judgment-debtor paid into Court the amount decreed, which included costs. On the 5th of July 1893, the decree-holder, having found that by the judgment he was entitled to a sum of about Rs. 1,000 more than the decree had given him, applied u/s 206 of the CPC to have the decree brought into accordance with the judgment. For some reason best known, if known at all, to the Judge to whom that application was made, he shelved the application on the 18th of November 1893. On the 28th of November 1895, the decree-holder madea second application u/s 206 to the same effect as the previous one, and on the 25tb of July 1896, the decree was brought into accordance with the judgment. The decree-holder delayed making his next application until the 17th of March 1897. It was for execution of the decree as amended. That application was dismissed on the ground that it was barred by limitation. From the order dismissing that application this appeal has been brought. Unless the decree-holder is entitled to call in aid his applications of the 5th of July 1893, and the 28th of November 1895, as applications to the proper Court to take a step in aid of the execution of the decree, execution of the decree is barred by limitation under Article 179 of the second schedule to the Indian Limitation Act, 1877, as the last application to execute the decree was that of the 23rd of January 1893.

In Kishen Sahai v. The Collector of Allahabad ILR All. 137, it was held that an application u/s 206 of the CPC to bring a decree into accordance with the judgment was substantially an application for review of judgment and gave, u/s 167* of Schedule ii of Act No. IX of 1871, a fresh starting point for limitation. We cannot regard proceedings u/s 206 of the Code as of the same nature in any respect as proceedings u/s 623 of the Code. In the former case, namely, u/s 206, the correctness of the judgment is not questioned; it is assumed; but the jurisdiction arises from the fact that the decree as drawn up and signed is not in accordance with the judgment. In the latter case, namely, u/s 623, not only the correctness of the decree, but the correctness of the judgment is questioned, and, if the application u/s 623 is allowed, a re-hearing of the suit or appeal to which it refers becomes necessary. In the former case there is no re-hearing. That part of the decision in Kishen Sahai v. The Collector of Allahabad to which we have referred was explained by Straight, J., in Kallu Rai v. Fahiman ILR All. 124, on the ground that, though ostensibly the application in Kishen Sahai v. The Collector of Allahabad had been made u/s 206 of the Code, the proceedings which were taken were proceedings which could only have been taken u/s 623 of the Code. We need not consider whether that explanation is correct or not. The decision in Kallu Rai v. Fahiman shows that an application u/s 206 of the CPC does not give a fresh starting point to limitation, and cannot be regarded as an application to a proper Court to take a step in aid of execution. That this is so is obvious from a consideration of Article 179, Clause (4) of the second schedule to Act No. XV of 1877. The application under that Clause must be one in accordance with law made to "the proper Court" for execution or to take some step in aid of execution of the decree. By explanation II to Article 179 "proper Court" means the Court whose duty it is to execute the decree. The Court executing a decree may or may not be the Court which would have jurisdiction to take action on an application u/s 206 of the Code, and, even if it was the Court which passed the decree, its functions as a Court executing the decree are not the same as its functions were as the Court making the decree. In executing the decree the Court executing it must take the decree as it finds it. It cannot amend the decree or alter it in any way. It is bound of course to construe the decree. The decree in execution may be the decree of the High Court, and the proper Court to execute that decree may be the Court of the Munsif by whom the suit was first decided. The Munsif could not act u/s 206 in respect of a decree made by an appellate Court, and he would be bound, as the Court executing the decree, to execute the decree whether he approved of it or not, even if the decree had been one made by himself. For these reasons we are of opinion that the applications of the 5th of July 1893, and the 28th of November 1895, were not applications made to the proper Court within the meaning of Article 179 to take a step in aid of execution of the decree, and consequently that execution of the decree was barred by limitation. It was decided, and we think rightly, in Tarsi Ram v. Man Singh ILR All. 492, that an application u/s 206 of the Code does not give a fresh starting point for limitation. We dismiss this appeal with costs.

--------------------------------------------------------------------------------------------------- *[Article 167: --------------------------------------------------------------------------------------------------- Description of Application. Period of Time when Period begins to run. Limitation --------------------------------------------------------------------------------------------------- For the execution of a decree or Three years The date of the decree or order, order of any Civil Court not pro- or (where there has been an appeal) vided for by No. 169. the date of the final decree or order of the Appellate Court,

or (where there has been a review of judgment) the date of the decision passed on the review,

or (where the application next here- inafter mentioned has been made) the date of applying to the Court to enforce, or keep in force, the decree or order,

or (where the notice next hereinafter made has been issued) the date of issuing a notice under the Code of Civil Procedure, Section two hundred and Sixteen,

or (where the application is to enforce payment of an instalment which the decree directs to be paid at a specified (date) the date so specified.] ---------------------------------------------------------------------------------------------------