D.S. Apte vs Tirmal Hanmant Savnur

Norman Macleod, C.J.—In this case a decree was passed oil May 28, 1903, in the Sub-ordinate Judge''s Court. The final, decree was passed by the High Court oh September 8, 1908. The plaintiff applied for execution on December 21, 1921. The opponent against whom this proceeding was instituted contended that the property sought to be attached and sold was hot liable for the decretal debt on the ground that it was in his possession as the grandson of the surety of the principal debtor. This contention found favour with the Subordinate Judge, and accordingly the application was dismissed.

The judgment-creditor appealed, and although no question of limitation was raised in the grounds of appeal, the question of limitation was raised at the commencement of the argument before the District Judge. The respondent argued that as between the date of the decree and the date of the last application more than twelve years had elapsed u/s 48 of the C.P.C. there could be no further application. Now, on June 9, 1911, the Subordinate Judge made an order that the amount should be recovered by annual instalments of Rs. 125 each, the first instalment to become due on February 1, 1912. In case of default to pay any, the whole to be recovered at once. Each instalment to carry interest at six per cent: per annum. The District Judge, following the decision in Jurawan v. Mahabir Dube 44 Ind. Cas. 24 : 16 A.L.J. 7 held that as that order was made by the Subordinate Judge sitting as a Court of Execution, it was not an order within the meaning of that word in Section 48(1)(b) of the C.P.C. In that case it was held that the expression "subsequent order" in Section 48(1)(b) of the C.P.C. means a subsequent order made by the Court which made the decree and acting as that Court, and not an order of a Court executing the decree, that an order made by a Court executing a decree allowing a judgment-debtor time to pay up the balance of the decretal money, would not be a subsequent order within the meaning of Section 48, and would not give a fresh period to the decree-holder to execute his decree, nor was an order merely giving time for payment an order staying execution or an injunction, so that the time so given could be excluded in computing limitation against the decree-holder."

With great respect, I cannot see myself why the words "any subsequent order" must be limited as if the words "by the Court which passed the decree" were" there. The words "any subsequent order," to my mind, mean, any order made by a competent Court. As the District Judge points out, any other construction would lead to this absurdity that there might be an order by a competent Court directing that the decree should be paid by instalments, with the result that when twelve years had expired, some of the instalments, might still remain to be paid, even if there had been no default on the part of the debtor. It would certainly be an extraordinary interpretation to put on those words which might result in a creditor being deprived of his right to execute for the subsequent instalments if they were not paid.

It is riot suggested in this case that the order of June 9, 1911, was not made by a competent Court.

The present darkhast sets out the previous history, of the decree. It recites the following order made in Darkhast No 286 of 1908:

The defendant No. 3 is examined. Having regard to all the circumstances I order that the amount should be recovered by annual instalments of Rs. 125 each. First due on February 1, 1912. In case of default to pay any, the whole to be recovered at once. Each instalment to carry in tersest at six per cent per annum from this date of recovery to be recovered along with the instalment June 9, 1911.

I fail to see on what possible ground we could hold that that was not a subsequent order within the meaning of Section 48(1)(b): I think that the District Judge has some excuse for following the decision in Juruwan Pasi v. Mahabir Dhar Dube 40 A. 198 : 16 A.L.J. 7 as there was no decision of this Court on the same point. We allow the appeal, set aside the order of the District Judge dismissing the appeal before him, as that appear was dismissed on a preliminary point which was raised neither in the Trial Court nor in the grounds of first appeal, and remand the appeal for further hearing before the District Judge. The appellant will-be entitled to his costs in this Court.

Coyajee, J.

I am of the same opinion.