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Judgment
Reilly, J.—In this case a decree was made that the plaintiff should recover certain property from the defendants and that'' he should pay to
certain of the defendants amounts for improvements. Grammatically those might be two separate provisions in the decree; but I think there is no
doubt that the intention of the decree was that on the payment of those amounts the plaintiff should be entitled to recover possession. The learned
District Judge adopted a rather curious course in making his decree in respect of those amounts to be paid for improvements. He fixed them
provisionally. He provided in the decree that they were subject to revision on the report of a commissioner to be appointed by the Court. There
was an appeal against the decree; but it was dismissed by this Court in December, 1918. On the 15th of December, 1919, the plaintiff put in an
execution petition, in which he prayed for the appointment of a commissioner to fix the amounts to be paid for improvements and for possession of
the property. Eventually the commissioner made his report, and the District Judge after considering it adopted the amounts suggested by the
commissioner on the 12th of November, 1920 and ordered that the plaintiff should pay those amounts into Court by the 17th of December, 1920.
The amounts were not paid by that date, and the execution petition was adjourned from time to time; and eventually on the 8th of August, 1921,
the plaintiff put in an application that further time might be granted to him for payment, and time was granted to him up to the 16th of August, 1921.
On that date the money had not been paid and the execution petition was dismissed. Then on the 6th of August, 1924, the plaintiff put in E.P. No.
26 of 1924 for delivery of the property on payment of the amounts fixed. Objection was taken by some of the defendants that that petition was
time-barred, because it was put in more than three years after the previous execution petition. The plaintiff contended that the bar of limitation was
saved by his application of the 8th of August, 1921, for the adjournment of the previous execution petition in order to allow him time to make the
payments. The learned District Judge decided against that contention and dismissed the second execution petition. The present appeal is against
that order of dismissal.
Mr. Rajah Aiyar, who appears for the plaintiff, has first contended that the application for extended time for payment, which was made on the
8th of August, 1921, was a step-in-aid of execution within the meaning of Article 182 of the Limitation Act. He has first referred us to Sankara
Nainar v. Thangamma I.L.R.(1921) M.202 : 41 M.L.J. 374 in which it was held that an application made by a mortgagor for extension of the time
allowed him for payment in a decree for redemption was a step-in-aid of execution. With very great respect I am not able to understand that
decision. The application of the mortgagor in that case appears to me to have been an application to extend the time fixed in the original decree,
that is an application to vary the original decree. There are provisions for making such applications in respect of redemption decrees. I do not
myself understand how such an application could be treated as coming within the words ""step-in-aid of execution"" in Art 182 of the Limitation Act.
But that, as I have said, was a decision in a mortgage suit and so perhaps may be regarded as not exactly applicable to the present case. What
appears to be of more use to the plaintiff in this case is the decision in Abdul Kader Rowther v. Krishnan Mala-val Nair ILR (1913) M.695 : 26
M.L.J. 433 in which an application for time to get an encumbrance certificate for the purpose of a sale in execution was regarded as a step-in-aid
of execution. Mr. Justice Ayling in Masilamani Mudaliar v. Sethuswami Aiyar I.L.R.(1916) M.251 : 33 M.L.J. 219 expressed dissent from that
view; and it has to be noticed that there is a decision directly in conflict with it in Kasivajjala Ramaswami and Another Vs. Boddu Veeranna and
Others, . But Mr. Rajah Aiyar has brought to our notice two cases of the Bombay High Court, Haridas Nanabhai v. Vithaldas Kisan-das ILR
(1912) B. 638 and Seshadasacharya v. Bhimacharya ILR (1912) B. 317 in which applications for time for getting copies of decrees or other
documents were held to be steps-in-aid of execution, and has also quoted Pitam Singh v. Tota Singh ILR (1907) A. 301. Bhairon Prasad v.
Amina Begam ILR (1916) A. 690 and Raghunath Prasad Singh v. Lachmi Narain Singh ILR (1925) A. 667 which are to the same effect. But,
even if to ask for time to. get from other persons documents necessary for execution proceedings can properly be regarded as a step-in-aid of
execution, in my opinion to defer, or to ask time for, doing something which concerns the decree-holder himself cannot properly be regarded as
aiding execution. It is rather in my opinion postponing execution. To say that it is aiding execution to ask for extended time for payment, because
the decree-holder, if he gets time, may be able to earn or borrow or otherwise raise money, appears to me unreasonable; and no decision has
been brought to our notice in which an application for time for that purpose has been held to be a step-in-aid of execution. The payment of the
money may well be a step-in-aid of execution; but the means and the opportunity of the decree-holder for raising it appear to me to be entirely
unconnected with execution. In my opinion, therefore, the application of the plaintiff for further time to make the payment was not a step-in-aid of
execution.
But Mr. Rajah Aiyar has contended alternatively that Article 182 of the Act has no relation to this case, because in the decree no time was fixed
for the payment of the amounts for improvements and they could not have been paid on the date of the decree as they had not then been
determined. That appears to me to be a good argument, and, if it is so, then we must turn to Article 181. If we do that, we find that the period of
limitation is three years from the date when the right to apply accrues. Mr. Rajah Aiyar indeed goes further and has contended that, as no time was
fixed for payment in the decree, the plaintiff might have paid at any time up to the end of the twelve years, and in support of that he has quoted
Rukmina Knar v. Sheo Dat Rai (1919) 17 A.L.J. 841 and Chhedi v. Lain ILR (1902) A. 300. Neither of those cases appears to me to support
that contention as each turned upon the interpretation of the particular words of the decree concerned. In the first case the decree-holder was at
liberty to pay the amount at any time in a certain month in any year. In the second case, which was one of pre-emption, time was held to run from
the date of the payment of the pre-emption amount within the period allowed in the decree. Neither of those cases, I think, can help the plaintiff.
The appropriate article appears to me to be Article 181, and we have only to determine the date when the right to apply accrued. In this case the
accrual could not be a continuing thing; the right must have accrued on some particular date. Now, as I have said, the District Judge left the
amounts to be paid for improvements unsettled in the decree, and under the decree they were to be fixed later on the report of a commissioner. A
commissioner was appointed, and on his report the District Judge fixed the amounts on the 12th of November, 1920. In my opinion the effect of
that was that those amounts were fixed upon that day and then became part of the decree. If there was anything irregular in the learned District
Judge''s procedure in arriving at his decree in that way, the plaintiff or any one else concerned had his right to appeal; but that is not a question to
be decided in execution. The amounts were fixed on the 12th November, 1920, and the order then made was that they should be paid by the 17th
of December, 1920. But, as I have mentioned, they were not paid, and that execution petition was eventually dismissed on the 16th of August,
1921. Mr. Rajah Aiyar contends that, even if we are to take the amounts as brought into the decree when the District Judge eventually fixed them
in November, 1920, yet, because the execution petition was not disposed of until the 16th of August, 1921, his right to apply within the meaning of
Article 181 did not arise until the dismissal of the petition on the 16th of August, 1921. That appears to me an untenable contention. The suggestion
is that the fixing of the amounts on the 12th of November, 1920, was merely an interlocutory matter, which did not really take effect until the
execution petition was finally disposed of in August, 1921. But, if we look upon the fixing of the amounts as an interlocutory matter incidental to the
execution petition, when that petition was dismissed, the order fixing the amounts went with it. I do not think that is the proper way to regard the
matter. If we remember the way in which this decree was drawn, the fixing of the amounts by the learned District Judge on the 12th of November,
1920, appears to me to have been the final settling of the decree, and from that date the plaintiff was at liberty to make his payment and his right to
apply within the meaning of Article 181 accrued.
Mr. Rajah Aiyar has raised one more contention, viz., that even apart from the facts that no date for payment was fixed in the decree and
payment could not be made on the date of the decree, Article 181 of the Limitation Act does not apply to this case, but only Section 48 of the
Code of Civil Procedure, which gives the decree-holder 12 years from the date of his decree for his application. That contention depends upon the
wording of Article 181. The wording is ""applications for which no period of limitation is provided elsewhere in this schedule or by Section 48 of
the Code of Civil Procedure, 1908."" Mr. Rajah Aiyar suggests that Section 48 of the CPC does provide a period of limitation, 12 years for all
decrees other than decrees for injunction, and that, if we exclude from Article 181 all applications which are provided for in other articles of the
Limitation Act and also decrees (other than decrees for injunction) which are provided for in Section 48 of the Code, there is very little left for
Article 181 and certainly not enough to cover this case. That is a curious result of what at first sight might be taken to be the grammatical meaning
of Article 181. If we look at Article 182, we find that the wording on the face of it may present almost the same difficulty. It runs:
For the execution of a decree or order not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908.
Literally, according to Mr. Rajah Aiyar''s interpretation, that would mean that Article 182 first excludes decrees included within Article 183 and
then excludes every decree which comes within Section 48 of the Code of Civil Procedure. Then to what decrees other than decrees for injunction
would Article 182 apply? I think those conundrums arise only from a superficial view of the wording of Arts. 181 and 182. Those articles like the
rest of Schedule I of the Limitation Act must be read with Section 3 of the Act. Section 3 of the Act provides that suits, appeals and applications
made after the periods of limitation prescribed in the first schedule shall be dismissed, that is, these periods of limitation set out in the different
articles of Schedule I of the Act are only to be taken in reference to the question of dismissal. Then we come to Article 182, If we read it, as I
think we ought to, ""for the execution of a decree or order not provided for as regards dismissal by Article 183 or by Section 48 of the Code of
Civil Procedure,"" there is no difficulty about it, because Section 48 of the Code only provides for the dismissal of execution petitions which come in
after the period of 12 years. It has no application to execution petitions put in at an earlier date and does not purport to deal with them. And in the
same way, if we read Art, 181, as ""application for which no period of limitation for the purpose of dismissal is provided elsewhere in this schedule
or by Section 48 of the Code of Civil Procedure,"" there is no difficulty about it, and in fact the universally recognised interpretation of those articles
is the right one, not the curious interpretation which Mr. Rajah Aiyar suggests from his view of the grammatical language of the articles, which is
perhaps not very happy.
Mr. Rajah Aiyar''s last contention, therefore, that neither Article 181 nor Article 182 applies to this case, but only Section 48 of the Code of
Civil Procedure, in my opinion also fails.
In my opinion this appeal must be dismissed with costs.
Anantaforishna Aiyar, J.
I agree.