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Judgment
Lallubhai Shah, Kt., Ag. C.J.
This appeal arises out of an application to execute the decree passed in Suit No. 402 of 1908 on October 26, 1909. It was passed on a promissory note executed by defendant No. 1 in respect of dealings between the plaintiff and the defendants'' shop for Rs. 970 and costs as claimed from the defendants, i.e., from defendants Nos. 1 and 2 and from the estate of all the defendants'' family and that of the shop At that time defendants Nos. 1 and 2 were the only adult members of the family and the other defendants Nos. 3 to 5 were minors.
Defendants Nos. 1 and 2 applied to the High Court to be adjudged insolvents. The adjudication order was made on September 6, 1910, and they got their discharge on March 20, 1912. The plaintiff had notice of these insolvency proceedings.
The plaintiff made his first application for execution against defendants Nos. 1 and 2 only in 1911. The second application (No. 674 of 1914) was made against them only in 1914. In 1917, the plaintiff applied to have the decree transferred for execution to another Court. The present application was made in 1920 for execution against the moveable property of defendants NOB. 3 to 5 It may be mentioned that the first two applications were not proceeded with at all.
The defendants contended that the application was time-barred. All the previous applications are within three years of each other : and the plea of limitation is based on the ground that the application of 1914 is not in accordance with law, as it was only against defendants Nos. 1 and 2, who had already got their discharge. Both the lower Courts have disallowed this plea, and ordered execution to proceed against the moveable property of defendants Nos. 3 to 5.
In support of the appeal on behalf of defendant No. 3 it is urged that u/s 45, Sub-section (2) of the Presidency Towns Insolvency Act the defendants Nos. 1 and 2 were released from their liability in respect of this decree, that no execution against them was open to the plaintiff in 1914 according to law, and that an application directed against them cannot be treated as being in accordance with law so as to save limitation against others who were not touched by the application. On the other hand, it is urged that it was in form an application for execution, that it was made in accordance with the requirements of the CPC and that it was sufficient to save limitation under explanation I of Article 182 of the Indian Limitation Act as regards the other joint debtors.
No case directly bearing on an application such as we have in this case has been cited to us. The point is not free from difficulty, but after a consideration of the arguments, we have come to the conclusion that no application for execution of the decree according to law against defendants Nos. 1 and 2 was possible after the order of discharge which must be taken to have been known to the plaintiff, Defendants Nos. 1 and 2, against whom only there was a personal decree, were released from their liability under the decree according to the provisions of Section 45(2) of the Presidency Towns Insolvency Act. The other defendants were not personally liable: and their interest in the joint family property was the only thing that continued to be liable, if at all, for the decretal amount. No elocution was taken out against them until 1920, Explanation I to Article 182 of the Indian Limitation Act, which is relied upon, is not sufficient, in our opinion, to save limitation under circumstances such as we have in this case.
We have considered the bearing of the decisions in Lalta Prasad v. Suraj Kumar ILR (1909) All. 309 and Bando Krishna v. Narasimha ILR (1913) 37 Bom 42 on the facts of this case. But where the possibility of legal execution as regards defendants Nos. 1 and 2 had come to an end to the knowledge of the plaintiff, as in this case, we do not see how his application of 1914 could be treated as being in accordance with law so as to keep alive the decree as against the other joint debtors.
In this view of the matter it is not necessary to consider whether under the circumstances any execution of the decree ii permissible at all, apart from limitation. That point has not been argued before us, though it has been mentioned in the memorandum of appeal.
We allow the appeal, reverse the decree of the lower appellate Court and dismiss the Darkhast with costs throughout.