Ram Ranbijaya Prasad Singh vs Nagesar Tiwari

Mohamad Noor, J.—The question involved in this miscellaneous appeal from an appellate order is whether the application for execution of his decree filed by the appellant on 3rd January 1936 was within time as against some of the judgment-debtors. The decree was obtained at Ballia in the United Provinces on 26th January 1926, and was brought for execution to Arrah. It was against two persons, Basdeo and Gopal. There were three previous executions, all of them against one of them only, i.e. Basdeo. The present one which is under consideration is against Basdeo and sons of Gopal who is dead. The latter urged that the application was barred against them and the learned District Judge, reversing the order of the learned Munsif, has held that it was so.

It is admitted that one of the earlier applications for execution (the second one) filed on 18th September 1930, was in time. Though it was against Basdeo only, it was effective against Gopal also under the Explanation to Article 182, Limitation Act, as the decree was a joint one. The next application for execution (the third) was filed on 25th May 1935, more than three years after the date of the final order on the application of 18th September 1930. The question for determination in this case is whether this application was in time. For the reasons which I shall just mention it was not barred against Basdeo. In between the dates of the two applications, namely 18th September 1930 and 25th May 1935, there was an insolvency proceeding against Basdeo which was started on 10th February 1932. The date of the termination of this proceeding (24th February 1936) given in the judgments of the Courts below seems to be incorrect. However it is immaterial. Now, u/s 28(2) and (7), Insolvency Act, read with Section 15, Lim. Act, the period of the pendency of the insolvency proceeding is to be excluded in computing three years from 19th March 1932, when final order was passed on the application of 18th September 1930.

Therefore, so far as Basdeo is concerned, the application of 25th May 1935 was in time against him. The question is, was the decree alive on that date against Gopal as well? In other words the question is, whether an insolvency proceeding against one of the judgment debtors of a decree suspends the running of limitation against others also? No doubt under the Explanation to Article 182, Limitation Act, the execution against a joint judgment, debtor is sufficient against all, and therefore as I have said, though the decree was passed in 1926 it was alive up to the time when the application for execution was filed on 18th September 1930, although the intervening execution was against Basdeo alone. But it does not follow that the suspension of the running of the Limitation Act against one of the judgment-debtors keeps the remedy alive against all of them. There was no legal bar to the decree-holder executing the decree against Gopal during the pendency of the insolvency proceeding against Basdeo and therefore when the application of 25th May 1935 was filed the execution had already become barred against Gopal, and the present execution has rightly been held to be barred against the sons of Gopal.

A question was raised before the Courts below as to the effect of the payment of a few rupees by the receiver in insolvency on 14th December 1935, on behalf of Basdeo. Assuming that the receiver was an agent of the judgment-debtor Basdeo, this payment cannot u/s 21(2), Limitation Act, save limitation against Gopal. Then this payment was after the decree had already become barred against him and is of no avail.

The appeal is dismissed, with costs: hearing fee one gold mohur. Certificate to appeal under the Letters Patent is granted.