Shaikh Salahuddin Ahmad and Others vs Imamuddin and Others

Rowland, J.—This is an appeal against the decision of the Subordinate Judge who has dismissed their objection against an execution as being barred by limitation. The litigation was instituted by Bibi Azizan, a Mahomedan widow, claiming her dower, and in the High Court she obtained by consent a decree giving her ten-sixteenths share and the defendants six-sixteenths share in the estate of Abdur Rahman with a direction that it should be ascertained through a commissioner what properties were comprised in the estate and that a partition of the properties should be made. Preliminary decree was passed by the lower Court on 29th March 1933, and coupled with it was an order for Rs. 295-4-3 to be paid by the judgment-debtors to the decree-holders plaintiffs on account of costs of the proceedings before the commissioner.

Thereafter the proceedings were continued for partition of the properties and final decree was passed disposing of the whole suit on 27th February 1938. The execution with which we are concerned was instituted on 20th April 1936, and the prayer is to execute the order for costs amounting to Rs. 295-4-3 which was passed on 29th March 1933. The objection is that a period of more than three years has elapsed since that order for costs was passed. The reply of the Subordinate Judge to this objection is that time must be considered to run from the date of the final decree.

In Article 182, Lim. Act, para. 1, the date of the decree or order is the starting point of limitation for execution of a decree or order of any Civil Court save as provided by Article 183 or by Section 48, which are not applicable. Decisions have been cited before us in which it has been held that the final decree was one complete and entire thing, and that limitation for its execution in respect of anything directed in it runs from the date of the final decree.

On the other hand, in cases where an order or decree separately executable was passed at an earlier stage, it has been held that in such a case limitation for applying to execute such an order or decree runs from its own date. Some assistance, I think, can be had by referring to Order 20, Rule 6, Civil P.C. Sub-rule (1) requires the decree to contain certain particulars and to specify dearly the relief granted or other determination of the suit. By Sub-rule (2) it is also to state the amount of costs incurred in the suit and by whom or out of what property and in what proportions such costs are to be paid.

Now, it was clearly open to the party at the time of preparation of the final decree to ask the Court to make it a complete decree covering all the matters determined in the suit and comprising within itself every order for costs that had been passed since the commencement of the litigation including any adjournment costs not already paid up. Such a decree could be executed at any time within three years thereafter. But it was also open to the plaintiffs without awaiting the final decree to execute the intermediate order for costs passed on 29th March 1933.

In my opinion, the position is this, that had the plaintiffs moved the Court to incorporate the intermediate order for costs in the final decree, there could have been no objection to this being done, and it would have been in strict compliance with Order 20, Rule 6. But when this has not been done and the plaintiffs seek to execute the order as an independent order, then such an execution must be taken within three years of the order.

That being the position, I am of opinion that so far as the present execution is concerned, we must hold that it is not maintainable and must allow the appeal without prejudice to the plaintiffs'' right to ask the lower Court to amend the decree and make it a complete decree in accordance with Order 20, Rule 6(2) covering all the reliefs granted to the plaintiffs in the suit including costs. The parties may bear their own costs of this appeal.

Mohammad Noor, J.

I agree. The principle deducible from the cases which have been cited at the bar seems to be this. If at an earlier stage a part of a suit is decided and to that extent a final decree capable of execution is passed, limitation for execution of that part will begin to run from then. A "decree" may be partly preliminary and partly final and so far as it is final it must be executed within the time prescribed in Article 182, Lim. Act. But if, on the other hand, only some amount has been ascertained at a particular stage and other amount is left to be ascertained later, then as laid down in the case in Vydianatha Iyer v. Subramanian Pattar 1913. 36 Mad. 104 the limitation will run from the date when the whole amount has been ascertained. It is open to a Court either to allow costs at the time of the preliminary decree or to defer passing order for costs till the time of the final decree or cost which has been ascertained at any earlier stage for which an order for payment was then passed, may as pointed out by my learned brother, be incorporated in the final decree.

In this particular case as the preliminary decree stands, there is a definite executable order so far as the cost is concerned and the present execution is barred. It will be, as pointed out, open to the decree-holders plaintiffs to ask the Court to incorporate the previous orders for costs in the final decree.