James Russel Mclaren and Others vs V. Veeriah Naidu and Others

Bakewell, J.—By a decree of this Court, dated 20th of February 1900, the two defendants in the suit were ordered to pay to the plaintiffs

the sum of Rs. 10,938-11-0 and interest thereon and costs, On the 24th February 1903, one of the plaintiffs in the suit presented an application for

execution of this decree which prayed that notice u/s 248 of the CPC might issue to the first defendant to appear and show cause why execution of

the decree should not issue and for attachment of a decree in another suit awarding costs to the first defendant. Notice was issued accordingly to

the first defendant and on 3rd March 1903 an order was made granting leave to execute as prayed.

On the 25th February 1914 the transferee from the same plaintiff presented this application for execution of the decree, which states that the -

last order in execution is that of 3rd March 1903 and prays that the name of the transferee may be brought on record and leave to execute the

decree against the second defendant be granted to him, and that notice may issue to the defendants. The second defendant appears upon notice

issued on this application and objects that the application is barred by limitation by virtue of Article 183 of the Limitation Act, 1908. This article

prescribes a period of twelve years for an application to enforce a decree of a High Court in the exercise of its ordinary original civil jurisdiction,

and provides that, when the decree has been revived, the twelve years shall he computed from the date of such revivor.

The English law is stated by Blackstone in the following passage: ""Writs of execution must be sued out within a year and a day after the

judgment is entered; otherwise the Court concludes prima facie, that the judgment is satisfied and extinct; yet, however, it will grant a writ of scire

facias in pursuance of statute Westm. 2-13 Edw. 1, c. 45, for the defendant to show cause why the judgment should not be revived and execution

had against him; to which the defendant may plead such matter as he has to allege in order to show why process of execution should not be issued

or the plaintiff may still bring an action of debt founded on this dormant judgment, which was the only method of revival allowed by the common

law"" (Commentaries, 15th Edition, volume 3, page 421). The writ recited the judgment and any change in the parties, and commanded the Sheriff

to make known to the defendant or other person named in the writ that he should appear before the Court on a specified date to show cause why

the plaintiff should not have execution of the judgment (Freeman on Execution, volume I. pages 323 and 324). The form of notice under Order

XXI, Rule 22 of the Code, which corresponds with Section 248 of the Code of 1882, contains substantially the same particulars (Appendix E,

Form No. 7), and it has been held that the procedure under this section has taken the place of the former procedure by writ of scire facias in the

Supreme Court, and that an order for execution after notice effects a reviver of a decree within the meaning of Article 183: see Desoo Venkatesa

Perumal Chetty v. Srinvasa Ranga Row ILR (1910) Mad. 187, Where there had been a change of parties subsequent to judgment, as in the case

of the death of the judgment-creditor a writ of scire facias was necessary even within a year of the judgment, and it was held that a judgment in

scire facias conferred a new right upon the executors-Farran v. Beresford (1843) 1001. & F. 319 and Farrell v. Gleeson (1844) Cl & F. 702; 8

E.R. 1269. Whether the judgment in scire facias conferred a new right when there had been no change of parties seams doubtful-Farran v.

Beresford (1843) 1001. & F. 19 but the writ should conform to the original judgment and should, therefore, be joint when the judgment is joint,

and the latter should be revived against all the original defendants (Freeman on Execution, volume I, page 313). The procedure upon the writ

therefore followed that in the action of debt against joint-debtors in which all should be joined and judgment against one extinguished the claim

against another joint-debtor-King v. Hoare (1844) 13 M. & W. 494.

From the passage from Blackstone cited above it appears that a judgment-creditor had concurrent remedies by the writ of scire facias and the

action of debt, and it is improbable that the judgments would have different effects.

The order of reviver in the present case was made without notice to one defendant and he had therefore no opportunity of appearing and

objecting thereto, and it had no effect as against him or his property, except that, if it were carried out hie co-debtor might obtain a right of

contribution as against him. It seems to me that an ex parte order of this kind should not be held to effect the position of the second defendant in

the absence of any direct authority.

In other Courts, where the prescribed period of limitation is very much less than in this Court, an application for execution made against one of

several joint-debtors takes effect against them all (article 182); but there it no such provision for cases in which notice of the application is required.

The fact that the legislature has expressly provided for one case of joint-debtors and has omitted to make the same provision for another case

appears to me to show an intention to place the two cases on a different footing.

For these reasons I hold that the previous order in execution against the first defendant did not revive the decree as against the second

defendant, and I dismiss this application with taxed costs.