Pattannayya vs Pattayya Alias Krishnayya Shanbhaga

Devadoss, J.—The only question in this appeal is whether the decree-holders'' application for execution is barred by limitation. The facts are

briefly these: The respondents herein obtained a decree in O.S. No. 77 of 1903 on 28th September, 1903. It is admitted that the application for

execution in R.E.P. No. 323 of 1915 on 11th March, 1915, was within time. The Court ordered delivery of the properties to the decree-holders

on 21st July, 1915. Third persons objected to the delivery. The objection was removed and item 3 was delivered to them on 27th March, 1916,

and the Court passed an order on that day: ""The 3rd item was delivered to the petitioners and the petition was recorded."" A suit was filed by the

obstructors and a temporary injunction was granted against the delivery of item 2. The suit was ultimately dismissed on 18th December, 1916 and

consequently the temporary injunction ceased to be in force from that date. The respondents filed an execution application on 3rd September,

1921, and prayed for delivery of item 2 from the 10th defendant. Both the Lower Courts dismissed the application as being barred by time and

Jackson, J. held in C.M.S.A. No. 38 of 1923 that the application was within time. Hence this appeal by the 10th defendant.

The first contention is that the present application filed nearly six years after the application of 1915 is barred by limiitation and it is urged that if

this application is to be treated as an application to revive the execution application of 1915, it should have been filed within three years of 18th

December, 1916 when the obstruction to execution was removed. The order of the District Munsif on the application of 1915 is "" the third item

was delivered to the petitioners and--the petition was recorded."" The question is whether this order amounts to a dismissal of the application. The

present CPC does not contemplate the passing of such an order. When an execution application is filed, if it is in order, it has to bo disposed of on

the merits; if it is barred by limitation or if the decree has been satisfied, or if the applicant is not the decree-holder''s assignee or his legal

representative, or if the decree-holder does not help the Court in executing the decree, or omits to do anything which the Court directs him to do,

the application will have to be dismissed unless for proper reasons the Court adjourns the application. If the decree-holder is not able to do a thing

directed to be done within the time allowed by the Court, the Court has to give him further time. There is no provision of law by which the

executing Court could lodge the petition or record it, or strike it off for what is commonly called the statistical purposes. The executing Court is

bound to follow the procedure laid down in the Code and it cannot dismiss the application for the reason that it is long pending. If there is

obstruction to the execution of the decree, the Court ought to adjourn the petition till the removal of the obstruction. It does not matter how long

the obstruction continues. If a temporary injunction is issued against a Court executing a decree, the Court should stay its hands till the injunction is

dissolved or till the suit in which it is granted is disposed of. If a permanent injunction is granted against the execution of the decree, then the

application for execution will have to be dismissed. If the executing Court adjourns the petition from time to time it will enable the decree-holder to

inform the Court as to the progress of the suit or proceeding in which the temporary injunction is granted and as soon as it is informed that the

obstruction has been removed the Court should proceed to dispose of the application according to law. It is to prevent dilatory proceedings and

the long pendency of execution applications that Order 21, Rule 57 has been enacted. It lays upon the decree-holder the duty of helping the Court

to execute the decree in his favour and if by reason of the decree-holder''s default the Court is unable to proceed further with the execution

application, it shall either dismiss the application or, for sufficient reasons, adjourn the proceedings to a future date. Upon the dismissal of such an

application the attachment shall cease. Under the old Code if the properties were once attached and the application for execution was

subsequently dismissed, the attachment did not necessarily cease to have effect. If, instead of following: the procedure laid down by the Code, the

executing Court orders that the language to according execution the with proceed able be would Court removed is obstruction as soon and not, or

proceeded could whether know position a in done, that If orders. for up brought them have time, time from applications adjourn of pendency long

prevent remedy The law. by sanctioned not action an dilatoriness reason suffer should party pending, matter keeps When steps. necessary taking

without pending kept but being way stood decree-holder was it fact overlooks obviously asking time-limit no will there regarded application

records lodges if argument with. had Court; executing attention call intended only 1921 still 1915 As remove. take which account on purposes

statistical default merits dismissal where viz., it, revive dismissed improperly been has dismissed. petition reviving speak use incorrect It pending.

required file 1915, nor execution, further record view this In die. sine adjourned this: amounts Code one order such off, struck recorded, lodged>

Great reliance is placed by Mr. T.M. Krishnaswami Aiyar on Suppa Reddiar Vs. Avudai Ammal, where a Full Bench of this Court held that if

an execution application is improperly dismissed a subsequent application to revive or continue the application is governed by Article 178 of the

old Limitation Act corresponding to Article 181 of the present Act. This case is distinguishable from the present, for here the application of 1915

was not dismissed. In Chalavadi Kotiah v. Poloori Alimelammah (1907) 18 MLJ 46 the executing Court dismissed an execution application

without notice to the parties on the ground that the execution had been stayed by the order of the District Court. Miller and Munro, JJ. held that

the order of dismissal amounted to no more than a direction to the officers of the Court to remove the proceedings from the pending list, and

observed at page 76:

That so long as proceedings initiated by the decree-holder are pending, his right to apply for their continuance accrues from day to day, i. e., on

every day on which the Court does not suo motu continue them. The right to apply will then not be barred till three years have elapsed after the

proceedings have ceased to be pending.

In Subba Chariar v. Muthuveeran Pillai (1912) 25 MLJ 545 Benson and Abdur Rahhn, JJ. follow the decision of Miller and Munro, JJ. in

Chalavadi Kotiah v. Poloori Alimelammah(1907) 18 MLJ 46 The principle of these cases is that if an execution application is pending, a

subsequent application is not an application under Article 181 but an application asking the Court to continue the proceedings in a pending

application. The decision in Ayissa Umma v. Puthiyapurayil Kannachamkandi Abdulla (1923) MWN 670 to which one of us was a party is in

point. It was held in that case that an order of dismissal of an execution petition for statistical purposes did not amount to a dismissal of the petition

but that the petition should be considered as pending. I hold that the application of 1915 is still pending, and therefore there is no bar to its being

proceeded with.

In this connection I must express my strong disapproval of the practice of striking off or lodging an execution application for statistical purposes.

The sooner it is stopped the better it would be for the parties as well as for the Courts executing decrees.

The next point urged is that the decree is not a joint decree and therefore the application of 1918 and of 1920 for execution against the 9th

defendant do not save the bar of limitation so far as the 10th defendant is concerned. In view of my decision on the first point it is unnecessary to

deal with this point at length. The relevant portion of the decree is as follows: ,

Plaintiffs do recover from defendants 9 and 10 possession of the plaint property with buildings thereon described below; plaintiffs do recover from

the 9th defendant future rental, etc., and plaintiffs do recover from the 10th defendant future rental, etc.

The argument is that inasmuch as the decree directs the 9th and 10th defendants to pay mesne profits severally, it is not a joint decree but a

several decree, and the application for execution against the 9th defendant cannot be treated as an application in a joint decree. Where a defendant

is directed to pay a certain sum to plaintiff and another defendant is directed to pay a similar sum or a different sum to the plaintiff, the decree is not

a joint decree; but where a decree directs that A and B shall pay a certain sum to the plaintiff and further directs that A should pay another sum

and that B should pay another sum and that A and B should bear their own costs, the decree is a joint decree against A and B. The decree is a

joint decree if any one of the reliefs given in the decree is against the defendants jointly even though some other reliefs may be given against each

defendant separately. Explanation 2 to Article 182 of the Limitation Act is in these terms:

But where the decree or order has been passed jointly against more persons than one, the application, if made against any one or more of them, or

against his or their representatives, shall take effect against them all.

This Explanation should be literally interpreted and according to its terms the present decree is a joint decree. In Subramania Chettiar v.

Alagappa Chettiar by Agent Palaniappa Chettiar ILR (1906) M 268 it was held that where a decree awards mesne profits against A and B jointly

and costs jointly against A, B and C, an application to execute the decree for mesne profits against A and B keeps alive the right to execute the

decree for costs against C under part 2 of paragraph 2, Explanation 1 to Article 179 of Schedule II to the Limitation Act. This case was followed

by a Bench of the Calcutta High Court in Baroda Kinkar Chowdhnry v. Nabin Chandra Dutta (1909) 11 CLJ 83 The facts of that case are very

similar to those of the present. The decree in this case is a joint decree and the present application against the 10th defendant is not barred by

limitation by reason of the applications of 1918 and 1920. I find this point against the appellant.

In the result the Letters Patent Appeal is dismissed with costs.

Waller, J.

On the first point I agree that, on the authorities no other conclusion is possible, though the position does seem to me to be highly

unsatisfactory. If the decree-holder had presented an application directly after the close of the intervening litigation (as he should have been forced

to do) and that application had been dismissed early in 1917, his present application would have been long out of time. Having done nothing to

prosecute his first application for six years, he is, on the authorities, still in time.

Something should, of course, be done to put an end to this method of adjourning execution applications sine die. If they are held up by some

other proceedings, they should be adjourned either for definite periods of six months each, or till the date of the closing of the other proceedings.

On the second point also I agree.