Ram Sarup and Another vs Ghaurani and Another

Blair and Burkitt, JJ.—The only question which arises in this case is, whether an application made by the appellants to obtain the decree provided for by Section 90 of the Transfer of Property Act is or is not barred by limitation. The lower Court has found that it is so barred. The first question which we have to consider is whether an application of this nature is one made in the course of proceedings in execution of a decreee passed u/s 88 of that Act. Upon this point we are concluded by the authority of two cases--Durga Dai v. Bhagwat Prasad ILR (1891) All. 356, and Musaheb Zaman Khan v. Inayatullh ILR (1892) 513 a proceeding in the execution of the original decree. Then so much being granted the question arises what is the limitation article applicable to such an application? The appellants contend that the article applicable is 179, while for the respondents is is argued that Article 178 applies. Now Article 179 is an article which provides a period of limitation for an application "for the execution of a decree or order of a Civil Court." It seems to us that the application we are considering, namely one to obtain a decree u/s 90, cannot by any straining of language be considered to be an application "for the execution of a decree" u/s 88. Neither in substance nor in form does such an application ask for execution of that decree. What it does ask is that, certain events being ascertained to have occurred, a subsidiary decree for money may be passed, in execution of which the amount still remaining due on the principal decree u/s 88 may be recovered. But as we have before remarked, such an application, though undoubtedly an application in an execution proceeding, is not an application "for the execution" of the principal decree. We hold therefore that this application is not governed by the limitation rule to be found in Article 179. That being so, the only other article of the Indian Limitation Act applicable is Article 178, and there can be no doubt in this case that, that article being applicable, the present application is time-barred. We therefore dismiss this appeal with costs.