Jawahir Mal vs Kistur Chand and Another

Sir John Edge, Kt., C.J. and Knox, J.—This is a reference from the Commissioner of Ajmere. Jawahir Mal obtained a decree against Kistur Chand and another for Rs. 4,110-12-8 with costs. That decree was obtained on the 22nd December 1883. The defendants appealed, and their appeal was dismissed. The plaintiff also appealed and his appeal was allowed. The result of his appeal was that he obtained a decree for certain costs of the appeal and for a sum found by the Commissioner to be Rs. 1,601-11-7 in addition to the amount of the original decree. On the 4th December 1886 he applied for execution, and on the 19th February 1887 his application was struck off, on the ground that he had not complied with the direction of the Court to file an inventory of the property to be attached and on the further ground that he was not present. There is no doubt in our minds that the decree to be executed is the decree of the appellate Court. We are informed that Jawahir Mal applied to the appellate Court to bring its decree into accordance with its judgment, and that the appellate Court dismissed that application, being of opinion that the decree was in accordance with its judgment and the application unnecessary. If the decree of the appellate Court had been drawn up strictly in form, it should have shown in itself the ultimate relief granted, that is, it should have shown a decree in Jawahir Mal''s favor, not only for the amount of the decree in the Court of first instance, but for the additional amount decreed in appeal by the appellate Court, and should also have shown the costs. The decree did not specify these amounts except by reference to the decree of the Court of first instance and to the finding of the Commissioner. Now, although this decree is not in form, still from the record it can be ascertained what the amount was, and in our opinion the informality in the decree which was the result of the manner in which it was drawn up in the office of the appellate Court, should not be allowed, where equity and good conscience are to guide us, to stand in the way of Jawahir Mal''s obtaining execution for the amount found in his favor and for his costs. The application for execution was also informal, but we think it may be treated as an application to execute the decree in the case. It referred not only to the decree of the Court of first instance, but also to the decree of the appellate Court. Now as to the question of limitation. The application of the 4th December 1886, although it was struck off on the 19th February 1887, was still, in our opinion, an application for execution, or a taking a step in aid of execution within the meaning of art. 179 of the second schedule of the Indian Limitation Act, and therefore the present application is not time-barred. Owing to the view which we take and have expressed in this case it does not appear to us to be necessary to discuss the question as to the conflict between the decisions of the High Courts. With this expression of opinion we order the papers to be returned to the Commissioner of Ajmere-Marwara.