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PETITIONER: PREM RAJ

       Vs.

RESPONDENT: RAM CHARAN

DATE OF JUDGMENT04/03/1974

BENCH: DWIVEDI, S.N. BENCH: DWIVEDI, S.N. REDDY, P. JAGANMOHAN GOSWAMI, P.K.

CITATION:  1974 AIR  968            1974 SCR  (3) 494  1974 SCC  (2)   1

ACT: Limitation Act 1908-S. 182-Whether the fifth application for execution  was  a  "step in aid of  execution"  and  if  so, whether it is barred by limitation.

HEADNOTE: K.and his wife purchased the house in dispute.  K died in 1936  leaving  behind  him S and R, his  son.   In  1951,  R mortgaged  the  house  to  the  appellant.   The.  appellant obtained  a preliminary decree for foreclosure and also  the final decree In the meantime, S. gifted the entire house  to Prakash Chandra son of R. He thereafter, frustrated  several attempts of the appellant to execute the decree and in 1956, instituted  a suit against the appellant and another  for  a declaration  that  the  preliminary  and  final  decree   of foreclosure  were  not  binding  on him  and  prayed  for  a perpetual  injunction against the appellant.  The  suit  was dismissed but he appealed.  The appeal court partly  allowed his  appeal holding that he was the owner of half  share  in the house by virtue of the gift and issued all injunction in his favour.  The appellant filed a second appeal in the High Court  and Prakash Chandra also filed a  cross-objection  in respect  of his half share.  Both the appeal and the  cross- objection were dismissed by the High Court The fourth execution application filed by the appellant  was dismissed on June 23,1956.  The fifth execution  application was  filed by the appellant on July 28, 1964 for  possession of  half  of the house.  The respondent  objected   to  this application  on the ground of limitation. the objection  was disallowed  by  the  execution  court   and  by  the  appeal court.It  was  however  held  by  the  High  Court  and  the application  was  dismissed  as  time  barred.   Hence  this appeal.  3 points were raised by the appellant  before  this Court-(1)  Limitation is saved by cis. 1, 2 & 4 of Art.  182 (ii) Limitation is saved by cl. 5 of Art. 182 and (iii)  the fifth application for execution was really an application to revive the fourth execution proceeding and therefore, it was not time dismissing the appeal, HELD : (i) It is plain that neither the decree of the appeal court  nor the decree of the High Court reversed, varied  or amended  in any manner the final foreclosure decree  of  the

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appellant.  The foreclosure decree remained intact and fully alive.    It  could  be  executed  against  the   respondent according to its tenor.  He could be ejected from the  whole house.   But it could never have any effect against  Prakash Chandra’s  (the respondent’s son) paramount title to a  half share  in the house.  Prakash Chandra’s appeal and the  High Court decree passed in his appeal would not fail within cls. 2  & 4 of Art. 1 82 and would not furnish a  fresh  starting point  of limitation for executing !the  foreclosure  decree against the respondent-judgment debtor.  Bkawanipur  Banking Corporation  Ltd.  v.  Gori  Shanker  Sarma  [1950]  SCR  25 referred to. [498 A-B, C] (ii)In order to get the advantage of Cl. 5 of Art. 182, the appellant has to satisfy 3 conditions:- (a)the  written statement filed in  respondent-son’s  suit and in were appeal were an "application" (b)  the  Court where respondent-son’s case and appeal,  and wherein the appellant’s second     appeal was file were  the proper court, and (c)  Proceedings  specified  in  (a) are a step  in  aid  of execution  of  the  decree  sought to  be  executed  by  the appellant. [498 D-F] (iii)To  oppose Prakash Chandra’s suit,  the  appellant had  filed  a  written  statement.   The  written  statement ordinarily does not include any request to the court and  it is not an ’application’ within the meaning of Cl. 5 of  Art. 182. [499 C-D] 495 (PannaLalv.Smt.Saraswati  Devi AIR 1960 Ali 572  and  Kartar Singh  v. Sultan Singh Partap Singh A.I.R. 1967 Punjab  375, distinguished.)  (iv) Further, even if the suit and appeal was instituted in the  proper  court,  the  written  statement  filed  by  the appellant  was not an application and therefore,  he  cannot take  advantage  of Cl. 5 of Art. 182.  As  the  appellant’s appeal  in  the  High Court was not an  application  to  the Proper Court it is unnecessary to decide whether in the suit and  in  the  appeal filed by Prakash  Chandra  the  written statement of the appellant and his resistance to the  appeal and his second appeal in the High Court amounted to a  step- in-aid  in execution of the decree sought to be executed  by him. [500 A-D, 503H-504 A] (v)The   fifth  application  for  execution  was   not   a continuation   of  the  previous  application  because   the previous  application  was  dismissed  for  not  paying  the process fee etc. and it was not a pending application.  (504 D-E] Dissenting  per  Goswami  J.-The appellant  was  faced  with resistance  from  the  respondent and  his  relations.   The appellant  made abortive attempts to execute  tile  mortgage decree  in order to obtain possession of the suit  property. Having  failed to obtain Possession by usual  civil  process the  appellant applied for police kelp which  was  rejected. Further,  the  respondents’ son dragged the appellant  to  a suit which became, another obstacle to the execution of  the decree  for possession of the suit property.   Further,  the partly  accepted appeal of the judgment debtors son  by  the appellate  Court  changed  the  character  of  the  original foreclosure  decree  which  the  appellant  could   execute. Further.  because of injunctions restraining  the  appellant from executing the fore closure’ decree in full the original foreclosure  decree in the form it was, was not  capable  of execution. [517 C-E, 518 D] Maharaja  Sir  Rameshwar Singh Bahadur  v.  Homeshwar  Singh (1921) 40 Madras Law Journal 116, referred to.

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Therefore,  the decree the Civil suit No. 75A of 1957 had  a direct  and  immediate connection with and effect  upon  the decree  in suit No. 27A of 1952 sought to be executed.   The nexus  between the two is manifestly clear.  It was  obvious that  the  appellants’  successive  ecphractic  actions   in defending the foreclosure decree in different ways until its final determination in the High Court were all "Steps in aid of  execution" of his foreclosure decree and therefore,  the appellants’  fifth  execution application was  within  time, being within 3 years from the date of the final order in the High Court on January 1, 1962. [517 E-H] Nagendra  Nath  Raj  & Ors. v. Suresh  Chander  Dey  &  Ors. A.I.R.  1932  P.C.1651  167.V. E. A.  Annamalai  Chethar  v. Valliammai  Achi and ors.72 IA 296/303; Bhawanipare  Banking Corporation Ltd. v. Gouri Shanker Sharma [1950]; S.C.R, (25) Rudra Narajan & Ors. v. Maharaja Kapurthala A.I.R. 1936 Oudh 248, A.S. Krishanappa Chethar & Ors. v. Nachiappa Chethar  & Ors. [1964] S.C.R. 241/252 etc., referred to.

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal No,.  16o7  of 1967. Appeal  by Special leave from the Judgment and Decree  dated the  3rd February, 1967 of the Madhya Pradesh High Court  at Jabalpur in Civil Misc.  Second Appeal No. 124 of 1966. B.   D. Sharma for the appellant. B.   N. Lokitr and A. G. Ratiaparkhi for the respondent. The Judgment of P. JAGANMOHAN REDDY AND S.  N. DWIVEDI,  JJ. was  delivered  by  DWIVEDI, J. P. K.  GOSWAMI,  J.  gave  a dissenting  Opinion. DWIVEDI, J.-Kariya and his wife Sava purchased the house  in dispute by a registered deed on April 2, 1905.  Kariya  died in 1936 leaving behind him Sava and Ram Charan, his son.  On August  16, 1951 Ram Charan mortgaged the house to Prem  Raj (the appellant).  Prem Raj obtained a preliminary decree for foreclosure on August 496 16, 1952 and also the final decree on July 16, 1955.  In the meanwhile.on  March 7,1952 Sava gifted the entire  house  to Prakash   Chandra,   son  of  Ram   Charan,the   respondent. Fortified  by this gift, Prakash Chandra frustrated  several attempts of the appellant to get possession of the house  in execution  of  his  decree.   He  made  three   unsuccessful attempts  to  execute the decree till the end of  1954.   He made  the fourth attempt on April 25, 1956.  Shortly  there- after,  on  December 7, 1956, Prakash Chandra  instituted  a suit  against the appellant and his father Ram Charan for  a declaration  that  the  preliminary  and  final  decree  for foreclosure in favour of the former were not binding on  him and  for  a perpetual injunction restraining  the  appellant from  taking  possession of the house in  execution  of  the aforesaid  decree.  The suit was dismissed on  November  25, 1958.  He filed an appeal and obtained an order staying exe- cution of the decree on December 31. 1958.  The appeal court partly allowed his appeal on October 21, 1959.  It was  held that he was the owner of a half share in the house by virtue of  the  gift deed from Sava in his favour.  So  the  appeal court  issued an injunction restraining the  appellant  from executing  his  decree with respect to a half share  in  the house.   The  appellant filed a second appeal  in  the  High Court  of Madhya Pradesh against the judgment of the  appeal court.   Prakash  Chandra also filed  a  cross-objection  in respect  of  his claim for the remaining half share  in  the

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house.   Both  the  appeal  and  the  cross-objection   were dismissed by the High Court on January 1, 1962. Turning  back to the fourth execution application  filed  by the appellant, it was dismissed on June 23, 1956.  The fifth execution application was filed by the appellant on July 29, 1964 for possession over half of the house.  The  respondent objected  to this application on the ground  of  limitation. The objection was disallowed by the execution court as  well as by the appeal court.  It was, however, upheld by the High Court  of Madhya Pradesh.  So the application was  dismissed as time-barred.  Hence this appeal. The  sole  argument of the appellant in the High  Court  was that S. 15 Limitation Act, 1908 (hereinafter called the Act) saved  limitation.  The High Court rejected  this  argument. The  order  of  the appeal court staying  execution  of  the decree remained in force only for a limited  period  between January  31, 1958 and October 21, 1959. That time should  be excluded in computing limitation under s. 15; but that alone would not have limitation. Before us, counsel for the appellant has not placed reliance on 15 to save limitation.  His arguments now are : 1.   Limitation is saved by clauses 1, 2 and 4 of Art. 182; 2.   Limitation is saved by cl. 5 of Art. 182; 3.   The  fifth  application  for execution  was  really  an application  to revive the fourth execution  proceeding  and therefore, it was not time-barred. 497 We  shall consider these arguments in seriatim.  But  before we do so, it is necessary to read the relevant provisions of Art. 182; "For the execution of a decree        1. The date of the decree of  Three 1. The date  of  the decree  any  civil   court.... years                               ....................                              2.    (where there has been  an                              appeal)  the date of the  final                              decree of the appellate Court                              4.  (where the decree has  been                              amended) the date of amendment,                              or                              5.    (where  the   application                              next hereinafter mentioned  has                              been  made)  the  date  of  the                              final   order  passed   on                              an    application    made    is                              accordance  with  law  to   the                              proper court to take more  step                              in  aid  of  execution  of  the                              decree....                              Explanation 11 : "Proper Court"                              means  the Court whose duty  it                              is      to     execute      the                              decree.........." Regarding argument No. 1 We are unable to appreciate how the High  Court  decree in Prakash Chandra’s suit  will  give  a fresh  starting point of limitation to the  appellant  under cl.   1  of Art. 182.  Clause 1 is to be  read  against  the backdrop of the words in the first colums "for the execution of  a  decree." So the date of the decree  (whether  of  the first  court  or  of the appellate court) which  is  put  in execution furnishes the starting point of limitation. The  final  decree in favour of the appellant was  drawn  up under Order XXXIV, rule 3 Civil Procedure Cod,-.  The decree absolutely debarred the respondent and all persons  claiming

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under  him from redeeming the mortgage It also directed  the respondent to deliver possession of the disputed house which was mortgaged.  The decree was binding on the respondent and anyone claiming under him. it could not and did not  purport to bind a third person claiming any interest in the house in his  own right.  In his suit Prakash Chandra challenged  the decree, inter alia, on the ground that he was the sole owner of the house.  He claimed a declaration that the decree  was not  binding on him and a permanent in junction  restraining the  appellant  from  taking  possession  of  the  house  in execution  of  the  decree.  The  appeal  court  found  that Prakash  Chandra was the owner of a half share in the  house by  virtue  of the gift from Sava who had a half  share  and that  accordingly the decree was not binding on him  to  the extent  of  a  half  share.   The  appeal  court  granted  a declaration to that effect and an injunction restraining the appellant  from  taking  possession of  the  half  share  of Prakash  Chandra  in the house in execution of  the  decree. The  decree  of the appeal court was affirmed  by  the  High Court. 498 It is plain that neither the decree of the appeal court  nor the decree of the High Court reversed, varied or amended  in any  manner the final foreclosure decree of  the  appellant. The foreclosure decree remained in tact and fully alive.  It could  be executed against the respondent according  to  its tenor.   He could be ejected- from the whole house.  But  it could  never  have  any  effect  against  Prakash  Chandra’s permaount title to a half share in the house. Prakash  Chandra obtained his decree in a  collateral  suit. The  appellant’s  second appeal against the  decree  of  the appeal  court  in  favour of  Prakash  Chandra  A,,,-is  not directed  against the foreclosure decree now  in  execution, nor  would  it, as shown earlier, effect the decree  in  any manner  in relation to the respondent judgment  debtor.   So his  appeal and the High Court decree passed in  his  appeal would not fall within cl. 2 and 4 of Art. 182 and would  not furnish  a fresh starting pint of limitation  for  executing the  foreclosure  decree  against  the   respondent-judgment debtor.  (See Bhawanipore Banking Corporation Ltd.  v.  Gori Shanker Sharma(1). The  appellant  has relied on Mohammad Jabir and  others  v. Narain  Prasad  Daruka  and others (2)  and  Janab  Mohammad Ismail  v. Tatlvia Bivi Amral and others. (3) In  these  two cases  the decree sought to be executed itself was  amended. So clause 4 of Art. 182 was directly applicable. Regarding argument No. 2 : In order to get the advantage  of cl.  5  of  Art. 182, the appellant  has  to  satisfy  three conditions :               (a)The  written statement filed by  him  in               Prakash Chandra’s suit, his resistance to  the               first appeal of Prakash Chandra and his second               appeal in the High Court are an "application."               (b)The  court  in which  Prakash  Chandra’s               suit and firs’ appeal were instituted and  the               High  Court  wherein  the  appelant’s   second               appeal was filed are the "proper court".               (c)The      specified in (a) are a step  in               aid  of execution of the decree sought  to  be               executed by the appellant. An  appellant  is  "the making of art  appeal,  request,  or petition  to a person; the request so made." (Shorter Oxford English Dictionary, 1955 Edn. 86) Thus the making of request to  a person is of the essence of an application.   In  some cases  it  has accordingly been held that the plaint  is  an

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’application’ within the meaning of that word in cl. 5  Art. 182.  (See  Rudra Narain v. Maharaja  oj’Kopurthala.(4)  The Bombay, Calcutta and Madras High Courts have, however,  held to the contrary. (See Raghunandan Prasad v.  Bhagggoolal.(5) It  is  unnecessary  to resolve  this  conflict  of  opinion between  the High Courts in this appeal.  To oppose  Prakash Chandra’s suit, the appellant had filed a written statement. So  we  are directly concerned with the question  whether  a written statement is an ’application’ within (1)  [1950] S.C.R. 25 at p. 29. (3)  I.L.R. [1965] 1 Madras 176. (2)  A.I.R. 1960 Patna 126. (4)  A.I.R. 1936 Awadh 248. (5) I.L.R. 17 Cal. 268. 499 the meaning of cl. 5 of Art. 182.  According to Order VII r. 1 Civil Procedure Code the plaint should specify the  relief which  the plaintiff claims.  So it may be plausibly  argued that  the plaint, which makes a request to the court, is  an "application".  But unlike the point, the written  statement ordinarily does not include any request to the court.  It is simply a defence to the plaintiff’s claim.  Order VIII  Code of  Civil  Procedure deals with matters which  ought  to  be included in a written statement.  Rule 6 thereof enables the defendant  to make a claim for set-off.  To the  extent  the written statement includes the claim for set-off, it may  be treated as a plaint.  It is perhaps arguable that a  written statement filed in an interpleader suit may also be  treated as  a  plaint.  But we express no opinion  on  this  aspect. Leaving  aside  rule 6 and the interpleader suit,  there  is nothing  in Orders VI and VIII, Code of Civil  Procedure  to show  that  a written statement could  legally  include  any request to the court.  We are aware of the general  practice in  the Mufassil of including ill the written  statement  of prayer  that the suit should be dismissed with  costs.   But this  prayer  is  super erogatory and would  not  convert  a written  statement Simpliciter into an ’application’  within the meaning of el. 5 of Art. 182. In  Panna  Lal  v. Smt.  Saraswati Devi  (1),  the  judgment debtor  made  an application under Order XXI, r. 2  Code  of Civil  Procedure to the execution court alleging payment  to the  decree  holder outside the court.   The  decree  holder filed a written objection denying payment.  The  application was ordered to be dismissed.  The appear from the order  met the same fate.  The High Court held that the time for filing the execution application ran from the date of the appellate order.  The High Court said : "(it was) of the opinion  that the  words"  "to take some step in aid of execution  of  the decree"  should  be interpreted liberally in favour  of  the decree-holder.  if  he, has mistaken and  step  which  would remove  as all obstacle to this further decree, he would  be entitled  to the benefit of the provision.  In  the  present case the decree-holder took steps to set aside the objection which was an hindrance against execution and was therefore a step-in-aid  of  execution."  Plainly, the  High  Court  has assumed without any discussion that the written objection of the  decreeholder to the application of the  judgment-debtor under Order XXI, r. 2 C. P. C. Was an application within the meaning  of  el.  5 of Art. 182 and has  they  proceeded  to decide whether the said objection was a step-in-aid of  exe- cution.   In our opinion, the assumption was  wrongly  made. The  written  objection  of the decreeholder  could  not  be regarded  as  area application. The Punjab  High  Court  has followed  the Allahabad decision in Kartar Singh  v.  Sultan Singh Partap Singh (2).  Like the Allahabad High Court,  the

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Punjab  High  Court also has erroneously  assumed  that  the written   objection  filed  by  the  decreeholder   to   the application  of the judgment-debtor for reopening  the  case and for setting aside the decree was an application. (1)  A.I.R. 1960 AU. 572. (2) A.I.R. 1967 Punjab 375. 500 Counsel  for  the  appellant has  strenuously  attempted  to pursuade  us  to  give a liberal construction  to  the  word ’application’  in cl. 5 of Art. 182.  We do not  think  that the  rule of liberal construction gives a free hand  to  the Court to stretch and strain the statutory language to accord with our abstract notions of justice and fair play.  In  our view, if the statutory language is susceptible of two  cons- tructions,  the rule of liberal construction should  incline the  Court  ’to  prefer  the  one  which  accomplishes   the legislative purpose.  But where the statutory language  will bear  one  and only one meaning, there is no  room  for  the application of the rule of liberal construction.   Howsoever liberally one may construe the word ’application’, it is not possible to regard the written statement of the appellant in Prakash  Chandra’s suit as an ’application’, for it made  no request to the court. Just  as  the written statement of the appellant  cannot  be regarded as an ’application’, so also the resistance to  the appeal  filed  by Prakash Chandra cannot be held  to  be  an ’application’.  Counsel for the appellant, however,  submits that  the appellant’s second appeal in the High Court  would be an ’application’. In V.E.A. Annamalai Chettiar v. Valliammai Achi(1) the Privy Council has held that an appeal filed by The decreeholder is an  application’.It  may  be assumed  that  the  appellant’s second  appeal in the High Court is an ’application’  within the  meaning  of  cl.  5 of Art. 182.   But  this  does  not conclusion the matter in favour of the appellant.  He has to show  that  the High Court is the "proper  court".   "Proper Court"  is  defined in Explanation It to Art. 182,  is  "the court  whose duty it is to execute the decree."  Ordinarily, the High Court with not be the "proper court" as so defined, because  it  is normally not the duty of the High  Court  to execute a decree.  According to s.38 Civil Procedure Code  a decree may be executed "either by the court which passed  it or by the court to which it is sent for execution.  So  "the proper   court"  would  be  the  court  which   passed   the foreclosure   decree  in  favour  of  the  appellant.    The appellant  can derive no assistance from Annamalai  (supra). In  that case the decreeholder had made an  application  for execution of his decree in the proper court.  The  judgment- debtor  filed  an  objection.  It  was  allowed.   Then  the decreeholder filed an appeal in the High Court.  The  appeal was  dismissed.   The Privy Council held that the  time  for making  the execution application ran from the order of  the High  Court.  Repelling the argument of the  judgment-debtor that  the  High Court was not the proper  court,  the  Privy Council said : "Under s. 187 of the Code of Civil  Procedure an  appeal  court has the same powers as are  conferred  and imposed  by  the Code on courts  of  original  jurisdiction. Where an application for execution is dismissed by the lower court, the appeal court is the proper, and indeed, the only, court  which  can  then execute the  decree.   No  doubt  in practice a High Court does not itself generally execute  the decree of lower courts; normally it remands the case to  the ’lower court with directions to, execute according to law on the basis (1)  72 Indian Appeals 296.

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501 of the High Court’s decision ; but in a proper case the High Court  would no doubt execute the decree or  order  itself." (emphasis  added) It is clear from this passage  (especially from  the  words shown in emphasis) that the  Privy  Council regarded the High Court as the ’proper court’ on account  of the fact that the decreeholder had applied for execution  of his  decree  in  the ’proper court’. It was  held  that  the appeal  court entertaining an appeal from the order  of  the executions     court  is the proper court. Such is  not  the case before us. It  may  be pointed out here that in the  courts  below  the appellant  did  not place reliance on Art.  182  for  saying limitation. So there is       no finding by the court  below on the point as to whether Prakash      Chandra’s  suit  was instituted in the court which could execute the        final foreclosure  decree of the appellant. The record  before  us does not unambiguously make out that the suit was instituted in  the  court  which could execute  the  said  decree.  The foreclosure decree was        passed  by  the  Civil  Judge, Class 11, Balaghat. It appears from the      plaint       in Prakash  Chandra’s suit that the suit was instituted in  the court          of the First Additional Civil Judge, Balaghat attached to the Second        Civil Judge, Balaghat. But the judgment of the appeal court in         Prakash    Chandra’s first  appeal indicates that the suit was instituted in  the court of the First Additional Civil Judge, Balaghat attached to the         court of the First Civil Judge, Balaghat.  So it is not certain whether          Prakash  Chandra’s   suit was instituted in the court which could execute        the final foreclosure decree of the appellant. But even if it is assumed        that  the  suit was instituted in  the  court which  could execute the said decree, we are unable to  hold that the appellant’s second appeal      to  the  High  Court arose  out  of an "application" made to the  "proper  court" because  his  written  statement  in the  suit  was  not  an "application"  made  to the proper court. So  the  appellant cannot get the benefit of cl. 5 of Art. 182. The  Allahabad  and Bombay High Courts have taken  the  view that   time would run from the date of the appellate  order. (Baldeo Singh v. Ram Swarup(1) and Joshi Laxmiram  Lallubhai v. Mehta Balashankar Veniram(2).  In Baldeo Singh (supra) an application for execution was made by Baldeo Singh, who  was the assignee of the decreeholder an July 15, 1916.  About  a year  earlier, the property against which the decree was  to be  executed  had been sold to Ram Swarup and Jai  Dayal  in execution  of  a simple money decree.  Ram  Swarup  and  Jai Dayal instituted a suit for a declaration that the  property purchased  by  them  was not saleable in  execution  of  the decree by the assignee, Baldeo Singh.  They also claimed  an alternative relief that they were entitled to a prior charge of nearly Rs. 2,000/- on the property.  While this suit  was pending,  the assignee’s application for execution was  dis- missed.   Thereafter the suit was decreed in respect of  the alternative relief only.  Baldeo Singh filed an appeal  from the  decree.   The  appeal  court  allowed  the  appeal  and dismissed the suit on March 19, 1918Baldeo Singh then  filed an application for execution on September 30,. (1) A.I.R. 1921 All. 174. (2) I.L.R. 39 Bombay, 20. 502 1919.   It was made three years after the dismissal  of  the previous  application.   The execution court  dismissed  the application  as timebarred.  The first appeal  court  upheld the order of the execution court. on appeal, the High  Court

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held that the application or execution was made within time. On,.- of the reasons given by the High ’Court in support  of its  view was that the appeal filed by the assigned  was  at step-in-aid  of execution.  The High Court said : "There  is another aspect of the case from which also this  application would  be within time.  The suit, as we have  stated  above, was for two reliefs : (1) that the property was not saleable and  (2)  the alternative relief was that the  property  was subject  to a prior encumbrance.  On the 18th of July  1917, the Court gave the then plaintiffs the second relief claimed by  them, namely, that they could put up their prior  charge of nearly Rs. 2,000/- as a shield against any person who got the  property  in  execution.   In  order  to  remove   this difficulty  in  the  way  of the  execution  of  his  decree unconditionally the decreeholder appealed successfully.  The decree  of the 19th March, 1918 would go to show  that  this appeal  must have been filed within 3 years of  the  present application for execution and this must be considered to  be a step-in-aid of execution. as by it the decreeholder wanted to remove certain difficulties which stood in the way of his getting  the  full benefit of his decree.  From  this  ,view also the present application is within time." It  may be observed that the High Court did not consider  at all  the  question whether the appeal was  an  ’application’ made  to the "proper court" as defined in Explanation 11  of Art. 182. In   Laxminarayan  Lallubhai  (supra)  the   judgment-debtor applied  to  have  himself declared an  insolvent.   In  the circumstances, the decreecholder could not have the judgment debtor  arrested  in  execution  of his  decree  if  he  was declared  an insolvent, and consequently he opposed the  ap- plication and when that was unsuccessful he appealed against the order declaring him insolvent.  It was contended that if s.15 of the new Limitation Act of 1908 be held inapplicable, his  opposition  to the insolvency of  the  judgment  debtor should be regarded as a step-in-aid of the execution of  the decree   under   Art.  179  of  the  old   Limitation   Act, 1877,corresponding  to Art.182of the   Limitation  Act,1908. Beamon,  J.,  speaking for the Division  Bench,  found  some difficulty  in  bringing such  an  application  (application opposing the application for insolvency) within the  meaning of  the  words  application  to  take  some  stepin-aid   of execution’under  Art.  179  (old),  now  Art.  182  of   the Limitation Act.  But when the result of the proceedings went against  him,  the  creditor ’ ’appellant  appealed  to  the District Court and succeeded.  Advertins to this aspect, the learned Judge said:               "We  think that it is not putting too great  a               strain  upon ordinary language to say that  an               appeal  in  such circumstances.  fairly  false               within   the   meaning  of  the   words:   ’an               application   to   take   a   step-in-aid   of               execution’.   It is clear that as long as  the               insolvency  proceedings went in favour of  the               debtor, the creditor could not have  presented               any  application  in ordinary course  for  the               further execution of his decree with the least               hope of success". 503 The appellant had no other course open to him, if the debtor was  declared insolvent, than in the first instance  to  get this  bar  to the further execution of his  decree  removed. And  the  only  way in which he could hope  to  obtain  that result  would be by first opposing the in solvency  petition in the first Court and if he failed thereby appealing to the

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higher court.  While so holding, the learned Judge struck  a note of caution :               "Adopting  that  view, it  is  unnecessary  to               enter into any of the other nice and difficult               questions   which   have   been   raised   and               adequately  argued  in  the  course  of   this               appeal.   We  do  not seek  to  lay  down  any               general principle upon any of those questions,               but  we desire to confine our judgment to  the               rather  unusual facts before us, and we  think               that  we  do not violence to  the  meaning  of               Article 179 (old), now Article 182, by holding               that  the  present darklast  is  within  three               years  of  the last application  made  by  the               judgment-creditor  to  a Court  to  take  some               step-in-aid of the execution of his decree." This   case  neither  considered  whether  the   application opposing  the insolvency was an ’application’,  nor  whether the  Insolvency  Court was the ’proper  court’,  within  the meaning of cl. 5 of Art. 182 of the Limitation Act.  On  the other hand the Madras High Court in Chatnangali Rarichan  v. Puvvanparambath  Kunhamu(1) held that an application to  the Insolvency Court for leave to execute the decree against the insolvent  is  not  an application made  to  aproper  court, because  it  is  entirely  a  creature  of  the   Provincial Insolvency  Act  and is therefore a different Court  to  the Court which is to execute a decree obtained independently of the  Insolvency  Act.   The mete  fact  that  the  Presiding Officer of the Insolvency Court and the Court executing  the decree  is the same person will not make the application  to the Insolvency Court as one to the Court entitled to execute the  decree.  Laxmiram Lalubhai’s case and the  observations cited  by  us were considered and it was  pointed  out  that explanation II to Art. 182 which defines what is the  proper court was not at all alluded to in the judgment.  It is  not necessary  to refer to other decisions because in  our  view the  period  spent in taking a step in aid can  be  excluded only  if the Court in which the step is taken is  a  ’proper court.’,  The facts in C. P. Syndicate Ltd.  Nagpur v.  Firm Hasanali  Abdul  Ali  (2) and Rajendra  Prasad  v.  Indrasan Prasad are similar to the facts in Annamalai(supra).  In the first  of the cases, it was an appeal from an order  of  the executing  Court dismissing an objection to  the  execution. To the second of them, also, the appeal which was considered to  be an application to take a step in aid was one  against an order of the executing court.  Both these cases relied on the decision of the Privy Council in Annamalai (supra). As  we  have held that the appellant’s appeal  in  the  High Court  was  not an application to the ’proper court’  it  is unnecessary to decide whether in the suit and in the  appeal filed by Prakash Chandra the (1) I.L.R. 57 Madras 808.     (2) A.I.R. 1959 M.D. 288 (FB). (3) A.I.R. 1954 Patna 46 504 written statement of the appellant and his resistance to the appeal and his second appeal in the High Court amounted to a step-in-aid in execution of the decree sought to be executed by him. Regarding  argument No. 3: An application may be said to  be one seeking to continue or to revive the previous  execution application if (1) it is in the eye of law still pending  or has been dismissed for no fault of the decreeholder and  (2) if  the two applications are in substance similar  in  scope and character.  Where the previous application for execution has  been properly and finally disposed of by the  execution

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court,  the subsequent application cannot be said to  be  in continuation  of  it or to be a  revival  application.  (See Vadlamannati  Bala Tripura Sundaramma v. Abdul Khader)  (1). In  the  present case the previous application  (the  fourth application  for execution was dismissed on June  23,  1956. The  execution  court  made  this  order:  "Decreeholder  in person;  judgment-debtor  absent.   Process  fee  not  paid. Dismissed  as  wholly  infructuous."  It  appears  from  the judgment of the appeal court, dated November 28, 1956,  that the execution court had dismissed the execution  application on June 23, 1956 as the appellant had failed to pay  process fee  for the warrant of possession.  It is plain from  these orders that the previous execution application was not  kept pending.   On the contrary, it was dismissed on  account  of the  appellant’s failure to pay process fee for the  warrant of   possession.   Accordingly  the  last  application   for execution  made on July 28, 1964 was not an application  for continuing  or  reviving the previous  application  made  on November 28, 1956. Counsel for the appellant has relied on Prem Narain v. Ganga Ram,(2)   Hira  Lal  v,.   Punjab  National  Bank(3)   Kotta Annaprurnanma  v.  Makku Venkamma,(4) Kalliappa  Goundan  v. Kandaswami Goundan(5) and Chmnammal v. Chennappa Goundan.(6) In  the first case the decreeholder and the judgment  debtor compromised and agreed that the latter should be given three months’ time for payment of the decretal sum and that if  he failed  to pay within the said period the  execution  should proceed.   The  court then ordead: "The  execution  case  be struck  off for the present".  The judgment debtor  did  not pay   the  amount  within  the  agreed  period.   Then   the decreeholder  filed  an  application for  execution  On  the judgment  debtor’s  objection that it was  time-barred,  the Allahabad  High Court held that the application was  one  to revive the execution proceedings.  The facts of the case are plainly  distinguishable from the facts of the  case  before us.   The execution application was not finally disposed  of and, in any case, the decree holder was not at fault. In  the  second  case,  the  decreeholder  had  applied  for execution  by attachment and sale of certain property.   One Kanshi Ram filed an objection that he had a lien on it.  The objection was allowed and (1)  A.I.R. 1933 Madras 418. (3)  A.I.R. 1935 Lahore 911. (5)  A.I.R. 1938 Mad. 498. (2)  A.I.R. 1931 All. 458. (4)  A.I.R. 1938 Mad. 323. (6)  A.I.R. 1958 Mad. 21. 505 the  proceedings  in  execution  were  stayed  because   the decreeholder  had  instituted a suit under Order  XXI,  r.63 Code of Civil Procedure and did not wish to proceed with the execution  till  the  decision of the suit.   The  suit  was decreed,  but  a  little before  that  the  application  for execution  was dismissed in default of the decreeholder  and the   attached  property  was  released.    The   subsequent application was made to revive the previous application  and to  sell the property which had already been attached  after the  decision  of  the suit.  In the  meanwhile  Kanshi  Ram preferred  an  appeal to the High Court.  So  the  execution court  directed  that  the application  ’be  filed  for  the present.   They  can be restored when appeals  in  the  High Court  are  decided.’ When the appeals were  dismissed,  the decreeholder applied for the sale of the property which  had already been attached.  The judgment debtor then objected on the  score of limitation.  The Lahore High Court  held  that

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the  subsequent application was one to revive  the  previous application  (which was dismissed in default).  It  is  true that  the previous application was finally disposed  of  and that  too  for default of the decreeholder, but  it  may  be recalled  that  at  the  request  of  the  decreeholder  the execution  court had stayed the execution proceedings  until the  decision  of the question of Kanshi  Ram’s  lien.   The court therefore could not dismiss the execution  application for  default of the decreeholder before the decision of  his suit  under Order XXI r.63 Code of Civil Procedure.  As  the order  of  the court was not correct,  the  application  was deemed  to be pending.  Thus understood, the decision  would not be helpful to the appellant. The  third  and  fourth cases have nothing to  do  with  the question  of  revival of an execution application.   In  the last  case  the  execution application  was  ordered  to  be dismissed.    More   than   three   years   thereafter   the decreeholder made another application.  The  judgment-debtor objected  on  the ground of limitation.  His  objection  was overruled.  A learned Single Judge of the Madras High  Court held  that  on the facts and circumstances of the  case,  as construed  by  him,  the  previous  application  was  really pending and that the subsequent application fell under  cl.5 of  Art.  182.  On the facts as construed by  him  the  case becomes distinguishable from the facts of the present  case. We  should,  however, make it clear that we  should  not  be understood to have given our approval to the decision. Counsel  for the appellant has submitted that it is  a  hard cast  for the decreeholder, for he is losing even  half  the share in the disputed house.  That is so, but the blame lies squarely  on  him.  He could have executed his  decree  with respect to the half share in the house after the decision of the  appeal court.  But he did not avail of the  opportunity and waited for the decision of the High Court in the  appeal and  cross-objection filed by Prakash Chandra.  He  was  not vigilant and should suffer the consequences. As  a result of the foregoing discussion, we are of  opinion that the High Court rightly dismissed the fifth  application as  time  barred.   So we dismiss the appeal.   But  in  the circumstances  of  this case parties shall  bear  their  own costs. 4-M 45 Sup CI/75 506 GOSWAMI, J. The interesting and important question which  is raised  in  this appeal with special leave  is  whether  the present application for execution, the fifth of its kind  in this  case, is barred by imitation under article 182 of  the Limitation Act, 1908. In  order to appreciate the above question of law,  a  brief reference  to  the history of the litigation  is  necessary. One  Kariya and his wife Sava purchased the  suit  property, which  is a house, by a registered sale deed of 20th  April, 1905.   Kariya died in 1936 leaving behind his  widow,  Sava and  their  son  Ram Charan, the  present  respondent.   Ram Charan  alone  executed a registered mortgage  deed  of  the entire suit property on 16th August, 1951, in favour of Prem Raj,  the  present appellant.  Prem Raj instituted  a  civil suit  No. 27A of 1952 on the basis of the mortgage deed  and obtained  a  preliminary  decree  for  foreclosure  on  16th August,  1952 and also the final decree on 16th July,  1953. Sava,  the  mother  of Ram Charan, on the  other  hand,  had executed  a registered deed of gift of the suit property  on 7th  March, 1952, in favour of Prakash Chandra, son  of  Ram Charan,  the respondent.  Basing his claim on this  deed  of gift, Prakash Chandra, then a minor, by his father’s sister, as  next  friend, filed a civil suit on  December  7,  1956,

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being  No. 75A of 1957 impleading the present  appellant  as the  1st  defendant and his father, Ram Charan, as  the  2nd defendant.  Prakash Chandra claimed to be the sole owner  of the  suit property and described his father Ram Charan as  a "gambler  and  drunkard"  in the plaint in  that  suit.   He prayed in the suit for declaration that the preliminary  and the  final decree for foreclosure of 16th August,  1952  and 16th July, 1953, respectively in the civil suit No. 217A  of 1952  were  not binding on him and that Prem  Raj,  the  1st defendant  therein,  "be  restrained  through  a perpetual injunction from taking possession of the house in dispute in execution  of  the aforesaid decree".  This  suit  was  dis- missed  on 25th November, 1958.  Prakash Chandra  lodged  an appeal against that judgment and decree and obtained stay of the  execution of the aforesaid foreclosure decree  in  suit No. 27A of 1952 on 31st December, 1958.  His appeal No.  37A of 1959 was partly allowed by the First Additional  District Judge,  Chandwara,  reversing  the earlier  decree  of  25th November,  1958  and  declaring  that  Prakash  Chandra  was entitled to the half share in the suit property. The decree was, inter alia, in the following form:--               "....it  is  ordered  and  declared  that  the               decrees in Civil Suit No. 27-A of 1952 of  the               Court of Civil Judge, Clas II.  Balaghat,  are               not binding on the plaintiff to the extent  of               half  share  in the house in suit  and  it  is               further ordered and decreed that the defendant               No.   1  is  hereby  restrained  from   taking               possession of plaintiff’,, half joint share in               the   house  in  suit  in  execution  of   his               aforesaid decrees". Prem  Raj  being dissatisfied with the judgment  and  decree lodged  a second appeal (No. 107 of 1960) in the High  Court of  Madhya  Pradesh.   Prakash Chandra also  filed  a  cross objection with regard to 507 his claim for the other half of the suit property.  Both the appeal  and the cross objection were dismissed by  the  High Court on 1st January,1962. Thus  being  free from the above mentioned  litigation,  the appellant,  Prem Raj, filed his fifth execution  application on July 28, 1964, in the Court of the Civil Judge, Class 11, Balaghat,  praying for "joint possession of the half of  the house  to be delivered from the judgment debtor  along  with (the  half  joint possession of) Prakash son of  Ram  Charan Gadhewal". Since  this is the fifth application for execution,  let  us look in retrospect to the four other execution  applications filed early by the appellant as decree-holder.  These may be given seriatim as under :- 27-7-1953The appellant filed the first execution application for  obtaining possession of the suit house in execution  of the final foreclosure decree in civil suit No. 27A of 1952. 8-10-1953The  appellant was unable to obtain possession  and the execution application was consigned to the records. 31-10-1953The second execution application was filled by the appellant for possession of the suit house. 6-8-1954  The   second   execution  application   was   also consigned  to  the  records  as  he  was  unable  to  obtain possession. 30-8-1954A third execution application was filed by the  ap- pellant for possession of the house. 11-1-1955The third execution application was also  consigned to  the  records  as’ the appellant  was  unable  to  obtain possession of tile suit house.

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25-4-1956The   appellant   filed   his   fourth    execution application for possession of the suit house and also  filed all  application for police aid as he made several  attempts in his previous execution applications to obtain  possession of  the suit house but lie was obstructed by the  respondent and  his  relations and that it was not possible  to  obtain possession  of  the suit house in execution  without  police aid. 4-5-1956  The  application of the appellant for  police  aid was rejected by the executing court and it was ordered  that an attempt should be made again to obtain possession without the police aid. 23-6-1956The executing court dismissed the fourth  execution application  of the appellant as wholly infructuous  as  the appellant  considered  it completely useless to  obtain  and execute  a fresh warrant of possession again without  police aid  and  so did not pay process fee and  instead  filed  an appeal  in  the  District Court against  the  Order  of  the executing court. 508 28-11-1956  : The appeal of the appellant against the  order of the executing court refusing police aid was dismissed  as the said order was not appealable and the execution case was consigned to the records. Reference has already been made to the civil suit No. 75A of 1957  filed  by Prakash Chandra on December 7,  1956,  which resulted ultimately in his partial success entitling him  to half  of  the  suit property, the whole  of  which  was  the subject matter of the foreclosure decree in suit No. 27A  of 1952. To  revert to the present execution case out of  which  this appeal has arisen, the respondent objected to the  aforesaid fifth  and last execution application on the ground  of  the same  being barred under article 182 of the  Limitation  Act 1908  his objection was dismissed by the executing court  as well  as  by the Additional District Judge in  appeal.   The respondent then filed a Miscellaneous Second Appeal No.  134 of  1966  in  the Madhya Pradesh.  High  Court  against  the judgment  of the Additional District Judge,  Balaghat.   The High  Court  on  2nd March 1967  accepted  the  respondent’s appeal and set aside the orders of the courts below and held that  the execution application of the appellant was  barred by   time   and  should  be  dismissed.    The   appellant’s application  fir leave to appeal to a Division  Bench  under the Letters Patent was rejected by the learned Single Judge. Hence this appeal with special leave. The  question  in  this  appeal  is  whether  the  appellant (decree-holder) is entitled to exclude the period covered by the suit filed by Prakash Chandra upto 1st January, 1962  on which date the High Court dismissed the appellant’s,  second appeal  as well as the respondent’s  crossobjection  arising out  of  that  suit.   To put  it  differently  whether  the appellant’s  filing  of  the written  statement  in  Prakash Chandra’s  suit  and  his resistance  to  his  appeal  which resulted in partial mutilation of his foreclosure decree and lastly  his  memorandum  of appeal  before  the  High  Court against the decree-are a series of steps in aid of execution of   his   foreclosure  which  has  been   passing   through vicissitudes  of  success  and  failure  in  the  course  of litigation. Mr. Lokur, learned counsel for the respondent, submits  that section  15 of the Limitation Act would not come to the  aid of the decreeholder since there was no stay of execution  of the decree by any court after disposal of the appeal by  the First  Additional  District  Judge on  21st  October,  1959.

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There  was,  therefore,  no impediment in  the  way  of  the appellant  executing the decree thereafter, says Mr.  Lokur. With regard to the further contention of Mr Sharma,  learned counsel  for the appellant, Mr. Lokur submits  that  article 182(2) will not apply as the appeal was not directed against the  original  foreclosure  decree which was  sought  to  be executed.   In this appeal Mr. Sharma concentrates upon  two submissions.  Firstly, according to him, the present case is fully   covered  by  article  182(5)  as   the   appellant’s resistance to the suit of the judgment-debtor’s son in civil suit No. 75A of 1957, thereafter to the civil appeal arising out of it and later himself pro- 509 secuting  a second appeal in the same matter to  defend  his foreclosure decree in suit No. 27A of 1952 are all  directed to  remove  an obstacle in the way of the execution  of  the original foreclosure decree and hence the same are "steps in aid  of  execution  of the original  decree"  under  article 182(5)  and  saves  running  of  limitation.   The   learned counsel,   therefore,  submits  that  the  fifth   execution application  of  28th July, 1964, being filed  within  three years  of  1st January, 1962, on which date the  High  Court finally  dismissed  the appellant’s second  appeal  and  the respondent’s cross objection, is within time.  Alternatively the counsel submits that the fifth execution application  is not  a  fresh  application  but  a  revival  of  his  fourth application of 25th April, 1956 and there is, therefore,  no question  of  the same being barred by  limitation  in  this case. It is now necessary to take up the appellant’s submission on the score of article 182(5) of the Limitation Act.  It  will be appropriate, therefore, to quote the same : Description  of Application.  Period of    Time  from  which period                       Limitation.     begins to run. 182. For the execution of a    Three Years   X   X decree    or order of any Civil Court not provided for by art. 133 or by s.48 of thenex there in aftermen  Code of Civil Procedure, 1908. (Where  the application next hereinafter mentioned has  been made)  the date of the final order passed on an  application made   in  accordance  with  law to  the  proper  Court  for execution  or to take some step in aid of execution  of  the decree or order, or........" In the present appeal what is material is the second  branch of article 182(5) in the third column, namely, "to take some step in aid of execution of the decree". The  learned counsel on both sides submit that there  is  no direct authority of this Court on the point although a large number  of  decisions  from the  High  Courts  disclosing  a cleavage  of  opinion  and a few decisions  from  the  Privy Council were cited at the bar in order to throw light on the subject from the respective points of view of counsel. As early as 1932, the Privy Council in Nagendra Nath Dey and another  v. Suresh Chandra Dey and others(1), while  dealing with the expression "whether there has been an appeal  under column  3 of article 182(2)", and noting the  difference  of opinion  among  the  authorities in  India  on  the  subject observed as follows:               "The  fixation of periods of  limitation  must               always  be to some extent arbitrary,  and  may               frequently result in hardship.               (1) A.I.R. 1932    Privy Council 165/167.               510               But  in construing such  provisions  equitable               considerations  are  out  of  place,  and  the

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             strict  grammatical meaning of the  words  is,               their  Lordships think, the only  safe  guide.               It  is at least an intelligible rule  that  so               long  as  there  is any  question  sub  judice               between  any  of the  parties  those  affected               shall not be compelled to pursue the so  often               thorny path of execution which, if the’  final               result  is  against  them;  may  lead  to   no               advantage.  Nor in such a case as this is  the               judgment  debtor  prejudiced.  He  may  indeed               obtain the boon of delay, which is so dear  to               debtors,  and  if he  is  virtuously  inclined               there is nothing to prevent his paying what he               owes into Court". Again  in V. E. A. Annamalai Chettiarv.  Valliammai  Achiand Another(1), the Privy Council dealing with article 182(5) of the  Limitation  Act  left  the  matter  open  observing  as follows:-               "There has been some difference of opinion  in               the  Courts  in India as to  what  amounts  to               taking  a  step in aid of  execution  and  the               judgment   under  appeal   discusses   various               decisions,  including a decision of  the  High               Court  of  Madras in  Kuppaswami  Chettiar  v.               Rajagopala Aiyer(2), in which it was held that               there could not be a step in aid of  execution               if there was not an application for  execution               then pending, and another decision of the same               court  in Krishna Patter v. Seetharama  Patter               (3),  in which it was held that a step in  aid               of  execution  must be one in  furtherance  of               execution and not merely one seeking to remove               an’ obstruction to possible future  execution.               Their  Lordships do not find it  necessary  to               express any opinion on these questions,  since               in the present case there was at all  material               times    an    application    for    execution               pending........" The expression "step in aid of execution" is not defined  in the  Limitation  Act  nor  is it capable  of  a  precise  or exhaustive definition.  It will have to be construed in  the light  of the facts and circumstances in each case  and  the present case is indeed a peculiar one with litigation raised on  two  fronts,  the parties  with  diametrically  opposite avowed  objects one (namely, the appellant) to  execute  and reap  the  fruit  of the foreclosure decree  and  the  other (namely,  the respondent judgment-debtor’s son) seeking  the assistance  of  the  court to completely  nullify  the  very decree  in order to maintain his title to and possession  of the suit property. In the above context, can the successive steps taken by  the appellant  in  resisting the respondent son’s claim  in  the latter’s  suit  and the former’s  other  consequent  actions thereafter in the original court, appellate court and lastly in  the  High  Court,  be construed  as  "steps  in  aid  of execution  of  the foreclosure decree".  It  is  strenuously contended  by  the respondent that all these  steps  are  in connection with another suit and not with the original  suit out of which the present execution petition was filed.  Both sides referred to a decision of this (1) 72 Indian Appeals 296/303.   (2) 1922 I.L.R., 45 M. 466. (3) 1926 I.L,R., 50 M.. 49. 511 Court  in  Bhawanipore  Banking Corporation  Ltd.  v.  Gouri Shanker  Sharma(1), which however, was a case under  article

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182(2)  of the Limitation Act and referred to the  following passage at page 29 of the decision:-               "It was also suggested by the learned  counsel               for the appellant that the case might be  held               to be covered by clause 2      of article  182               on the ground that, even though no appeal  was               preferred from the final mortgage decree,  the               words  "where  there has been an  appeal"  are               comprehensive  enough to include in this  case               the  appeal  from  the  order  dismissing  the               application  under  order IX, Rule 9,  of  the               Civil Procedure Code, made in connection  with               the  ’proceedings  under  section  36  of  the               Moneylenders Act.  This argument also is a  highly               far-fetched one, because the expression "where               there  has been an appeal" must be  read  with               the words in column of article 182, viz., "for               the  execution  of a decree or  order  of  any               civil  Court........ and, however, broadly  we               may construe it, it cannot be held to cover an               appeal  from  an order which is  passed  in  a               collateral  proceeding or which has no  direct               or immediate connection with the decree  under               execution". The learned counsel for the appellant seeks to derive  great support  from  the words "which has no direct  or  immediate connection  with  the decree under execution  in  the  above excerpt.   It is apparent that the facts of the case  before this Court in the above decision are clearly distinguishable and  there was no direct connection between the  application etc.  for revival of a collateral proceeding under, order  9 rule  9 and the original decree sought to be  executed.   On the  contary  if  it  is possible to find in  a  suit  or  a proceeding a direct and immediate       connection with  the original decree, the result where of will be or even  likely to  be  affected be the particular suit or  proceeding,  the matter  may  be entirely different. What is then  the  exact legal position on the         facts and circumstances of the persent executing case vis-a-vis the suit of Prakash Chandra which  mutilated  the foreclosure decree to  the  extent  of depriving the appellant from executing in respect of half of the  suit property earlier decreed in his favour? Would  the appellant execute or even reasonably be expected to  execute his  whole decree while his right to do so has already  been under challenge or in a jeopardy in a civil suit? Would  the appellant be expected to have a sort of clairvoyance or pre- science  about the result of the suit which he is  defending and,  therefore, execute the decree confidently and seek  to recover  the property without the least risk of  any  future litigation?  In a legal adventure of this type  multiplicity of  litigation and self created complications in case of  an ultimate  failure  in  the suit, may be writ  large  in  the nature  of things. Would he still tread on the "thorny  path of execution"? In the face of ambiguity or doubt, for  long, recognised  in courts, if a beneficient construction to  the words"  step in aid of execution" in article 182(5)  of  the Limitation Act could be given, it will be only giving effect to the law and not to equity which’ is out of bounds in limitation. (1)  [1950] S.C.R. 25. 512 It may be clearly noted that there is no controversy between the parties in this appeal with regard to "the proper court" for  execution within the meaning of the second  explanation of  article  182(5)  of the Limitation Act.   It  stands  to

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reason,  therefore,  that no argument was  advanced  by  the parties’  counsel  on this score.  The only  controversy  is with  regard  to  the benefit of the time  consumed  in  the entire  litigation commenced in civil suit No. 75A  of  1975 and   the  consequent  appeals  thereafter.   It  will   be, therefore,  difficult  to visit the appellant with  an  evil consequence  without  affording him an opportunity  to  meet such  a  possible objection which even lacks  certainty  and definiteness on the records of this appeal. Some  of  the High Courts seems to lean towards a  fair  and liberal interpretation in favour of the decree-holder in the construction of articlel82(5)in respect of what is "step  in and of execution" of a decree (See Rudra Narainand others v. Maharaja   oKapurthala(1);   Kotta   Annapuranamma   v.Makku Venkamma(2);  Panna  Lal v. Smt.  Saraswati  Devi(3)and  Uma Shankar   Mehrotra   v.   Kanodia   Brothers,   Kanpur   and another(4).It  is  not possible to read these  decisions  as judicial exercise to give effect to equity superimposed upon law.  The respondent’s counsel on the other hand  draws  our attention  to the strict construction of section 15  of  the Limitation  Act, which is, however, not relied upon  by  the appellant, in A. S. Krishnappa Chetliar & Ors. v.  Nachiappa Chettiar& Ors.(5) and relies upon the following passage.               "The  question is whether there is  any  well-               recognised principle whereunder the period  of               limitation can be regarded as being  suspended               because  a  party is prevented  under  certain               circumstances from taking action in  prusuance               of  his  rights.   The  Limitation  Act  is  a               consolidating and amending statute relating to               the  limitation of suits, appeals and  certain               types  of  applications to  courts  and  must,               therefore, be regarded as an exhaustive  code.               It  is a piece of adjective or procedural  law               and   not  of  substantive  law.    Rules   of               procedures,  whatever they may be, are  to  be               applied only to matters to which they are made               applicable by the legislature expressely or by               necessary implication". The  learned counsel for the respondent further relies  upon another decision of this Court in Sirajul Haq Khan &  Others v.  The  Sunni Central Board of Wakf U.P. and  Other(6)  and lays stress on the following passage :               "Section 15 provides for the exclusion of time               during which proceedings are suspended’ and it               lays  down  that ’in computing the  period  of               Limitation   prescribed   for  any   suit   or               application for the execution of a decree, the               institution  or  execution of which  has  been               stayed  by an injuction or order, the time  of               the  continuance of the injunction  or  order,               the day on which it was issued               (1)   AIR 1936 Oudh 248.               (3)   AIR 1960 Allahabad 572.               (5)   [1964] 2 S.C.R. 241/253-54               (2)   AIR 1938 Madras 323.               (4)   AIR 1966 Allahabad 409.               (6) [1959] S.C.R. 1287/1301-1302.                      513               or made and the day on which it was withdrawn,               shall  be  excluded.  It is  plain  that,  for               exuding  the time under this section, it  must               be  shown that the institution of the suit  in               question  had been stayed by an injunction  or               order; in other words, the section requires an

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             order   or  an  injunction  which  stays   the               institution  of  the suit.  And  so  in  cases               failing under s. 15, the party instituting the               suit would by such institution be in  contempt               of court".               This Court, however, also observed in the same               decision as follows.’-               "Whether  the requirements of s. 15  would  be               satisfied by the production of an order or  an               injunction  which  by  necessary   implication               stays  the institution or the suit is open  to               argument.  We are however, prepared to  assume               in the present case that s.15 would apply even               to  cases where the institution of a  suit  is               stayed  by necessary implication of the  order               passed  or injunction issued in  the  previous               litigation". The  respondent,  as  already  mentioned,  has  referred  to Bhawanipore Banking Corporation Ltd. v. Gouri Shankar Sharma (supra)  and submits that the subsequent suit has no  direct or immediate connection with the decree under execution  and we will deal with this aspect at the appropriate place. The  respondent  relies upon a decision of the  Bombay  High Court in Somshikharswami Shidlingswami’v.  Shivappa Mallappa Hosmaani  and  Others(1), which, according  to  the  learned counsel, runs on all fours with the present case.  This was, however,  a  case where the High Court was  considering  the pleas of sections 14 and 15 of the Limitation Act raised  by the  decreeholder to save running of time.  The  High  Court held section 15 out of the way as there was no order of stay or  injunction in any of the suits filed- by  the  judgment- debtor  preventing  the  decreeholder  from  executing   his decree.   With  regard to the plea of section 14(2)  of  the Limitation  Act, the High Court held that the  decree-holder was not prosecuting any case but was only defending the same and it was "difficult to say...... that the Court was unable to  entertain the proceeding form defect of jurisdiction  or other cause of alike nature".  Adverting to the unholy  type of tenacious litigation of the judgment debtor in that  case the  High  Court, being unable to apply  the  provisions  of sections 14 and 15 of the Act, pithily and rather  ruefully, observed as follows:               "It is no doubt unfortunate that the plaintiff               finds  his remedy thus barred in a  matter  in               which he has been asserting his right to  this               property for the last ten years and more......               Ina case of this kind it may be desirable that               the  plaintiff ought to be in a  position  the               deduct  the  time  taken  up  in  defending  a               litigation  of the nature such as we  have  in               the  present  case.  But as we are  unable  to               bring  the case within the provisions  of  the               Limitation  Act, the plaintiff’s  appeal  must               fail". (1)  AIR 1924 Bombay 39/4041. 514 It may at once be pointed out that there is no reference  in the  above decision to article 182(5) of the Limitation  Act and necessarily there was no discussion of the provision  in favour  of  the  decree-holder who  sought  to  execute  the decree.   This decision is, therefore,. of no avail  to  the respondent  on the legal aspect with which we are  concerned in  this  appeal.  At the best it could be  advanced  as  an implied  authority, in the circumstances of that  case,  for the  proposition  that a written statement or defence  in  a

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suit  is  not  to be treated as an  application  in  aid  of execution.   But  we find an observation of  this  Court  in Madan lal v. Sunder lal and another, (1) while dealing  with section 30 of the Arbitration Act, to the following effect:-               "It  may be conceded that there is no  special               form prescribed for making such an application               and in an appropriate case an objection of the               type made in this case may be treated as  such               an  application,  if it is  filed  within  the               period of limitation". There  is  no difficulty in holding that in  an  appropriate case,  a  written statement defending a particular  suit  or memorandum  of appeal in prosecuting a particular appeal  or resisting it may be treated as an application being a  ’step in  aid  of execution’ under certain definite  and  positive circumstances, although no general rule can be laid down  in this behalf. The  respondent  also relied upon a decision of  the  Madras High  Court  (Full Bench) in (Vadl  amannati)  Bala  Tripura Sunderamma  v. Abdul Khader, (2) in which section 15 of  the Act was pressed into service and the High Court repelled the plea  and  also  refused  to  treat  the  subsequent  barred application  as  one  of  revival  of  the  old  application dismissed  for  non-payment of batta by  the  decree-holder. Article  182(5)  did not come up for consideration  in  that case.  The  Madras  Full Bench decision (supra)  approved  of  the decision  in  Satyanarayana  Brahmom  v.  Seethayya(3)   and observed as follows :-               "In  regard to the institution of  suits,  not               the  execution  of  decrees,  it  is  held  in               Satyanarayana Brahmam v. Seethayya(3) that  no               equitable  grounds  for the  suspension  of  a               cause of action can be added to the provisions               of the Limitation Act and a decree  cancelling               a promissory note as fraudulent is no stay  of               a suit upon the note" (emphasis supplied).               In  Muthu Korakkai Chetty v. Madar Ammal,  (4)               Sadasiva Ayyar,               J., observed as follows:               "A person is not bound to bring an unnecessary               suit   or  to  make  futile  and   unnecessary               applications   during  the  course  of   other               litigation  proceedings for the settlement  of               the same right"               Sundaram Chetty, J., also observed as  follows               in the same decision :               (1)   [1967] (3) S.C.R. 1471151.               (2)   AIR 1933 Madras 418/419/421.               (3)   AIR 1927 Madras 597.               (4)   AIR 1920 Madras 1-43 Madras 185 (F3).               515               "it may be contended with some show of  reason               that  even  in the absence  of  an  injunction               restraining  the  sale of  the  properties  in               execution  of the mortgage decree in O.S.  No.               29 of 1918, the declaration of the  invalidity               of  that  mortgage  would be  an  obstacle  to               pursue the execution of the mortgage decree by               seeking  to sell the mortgaged properties.   I               am not however dealing with that point". This,  however,  does not mean that a  rule  with  statutory force  can be laid down by the court superimposing upon  the provision  of  the  Limitation Act.   The  question  in  the present   case,  therefore,  must  rest  upon   the   proper

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construction of article 182(5) without superadding  anything to the law and whether the Court will be prepared to give  a beneficient  construction  to  the words  "step  in  aid  of execution." The  respondent’s  counsel  relied upon  Govinda  Bhatta  v. Krishna Bhiatta, (1) which, however, cannot come to his  aid as will appear from the following extract therefrom :                "It  is,therefore,  not possible  for  us  to               accept  the  contention of  the  decree-holder               that his right to execute the decree had  been               in any manner affected much less extinguished,               by reason of the finding contained in Ext.  A-               3 judgment". The  respondent  also relied upon  Raghunandun  Parshad  and Another v. Bhuggo Lall (2), dealing with article 179 of  the old  Limitation Act, 1877, corresponding to article  182(s), but the following observation at page 271 would clearly show that the case is distinguishable on facts:-               "It  is clear that the  decree-holders  could,               notwithstanding  the order in the claim  case,               have   prosecuted   their   application    for               execution  against the one-third  share  which               was  not released then quite as well  as  they               can  do so now.  Their present application  is               for  the  sale  of that  third  share  of  the               property;  there  was  no bar  then  to  their               enforcing  the  execution of the  decree,  and               there: has been no subsequent removal of  that               bar". The  respondent’s  counsel  further  relied  upon  Surisetti Ramasubbayya v. Palur Thimmiah and others (3) wherein it was held that the plaint in the declaratory suit under 0 21,  r. 63 cannot be treated as an application under article 182(5); nor  is it a "step in aid of execution".  Even in the  above case the High Court observed at page 11 as follows:-               "It may be conceded that the plaint was  filed               by the decreeholder with the object of getting               rid  of  the finding of  the  executing  court               which was to the effect that the property  was               not   liable  to  be  proceeded   against   in               execution  of his decree and that this may  be               therefore   regarded  as  a   step-in-aid   of               execution". (1)  AIR 1968 Kerala (FB) 250/252. (2)  (1890] I.L.R., 17 Culcutta 268/271. (3)  AIR 1942 Madras 5111. 516 The respondent’s counsel also referred to Katragadda Ramayya and  another  v.  Kolli Negaswararao and  others  (1)  which however,  was  not  required to deal  with  this  particular aspect  of the matter before us under article 182(5).   Even in  Narayan  Jivangouda Patil and another  v.  Puttabai  and others  (2) at page 8 the Judicial Committee, while  dealing with an argument with regard to section 15 of the Limitation Act  that  the injunction or order to  be  effective  should contain an express prohibition, observed as follows:               "....it  is  not necessary  to  consider  that               point  as their Lordships are  satisfied  that               there  is  no prohibition, either  express  or               implied in the injunction or the decree in the               present  case, which restrains  the  appellant               from  instituting  a  suit  for   possession".               (emphasis supplied). After  a survey of the various decisions on the subject,  it may perhaps be possible to have two views on this aspect  of

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the  matter  but it is difficult to  overlook  that  certain reservations were made by the Privy Council both in Nagendra Nath  Dey’s  case (supra) as well as in  Narayan  Jivangouda Patil’s case (supra) for an appropriate occasion to consider whether  the "intelligible rule" referred to in  the  former and  the "rule of implication" hinted in the latter may  not be  pressed into service in favour of the  decree-holder  in construing  certain  relevant provisions of  the  Limitation Act-thus  making  the  way  clear for  a  fair  and  liberal interpretation  of  Art.  182 adverted to  in  several  High Courts’  decisions.   A somewhat apposite  decision  on  the point  is available in Joshi Laxmiram Lallubhai and  another v. Mehta Balashankar Veniram, (3) with regard to a ’step  in aid  of execution’ under article 179 of the Limitation  Act, 1877 and the successor article 182 of 1908 Act.  The  Bombay High Court observed therein as follows at page 25:               "We  think that it is not putting too great  a               strain  upon ordinary language to say that  an               appeal  in  such  circumstances  fairly  falls               within   the  meaning  of  the  words  :   "an               application   to   take   a   step-in-aid   of               execution".   It is clear that as long as  the               insolvency  proceedings went in favour of  the               debtor, the creditor could not have  presented               any  application  in ordinary course  for  the               further execution of his decree with the least               hope  of  success.  Two at least of  the  High               Courts  in India had already put so liberal  a               construction upon the insolvency provisions of               the old Civil Procedure Code that an executing               creditor   must   have   foreseen   that    no               application  for the execution of  the  decree               either by, sale of property or arrest, of  the               person  of the judgment-debtor could have  the               least  chance  of  success  so  long  as   the               judgment debtor had been declared an insolvent               under  section 351, even although he  had  not               been actually discharged within the meaning of               section 357.  So that we think that in view of               the Court’s finding that this  judgment-debtor               was an insolvent early in               (1)   AIR 1969 Andhra Pradesh (FB) 259.               (2)   AIR 1945 Privy Council 518.               (3)   [1915] L.L.R. , 39 Bombay 20/25.               517               1906,  the  present  appellant  had  no  other               course open to him than in the first  instance               to  get this bar to the further. execution  of               his decree removed, and the only way in  which               he  could hope to obtain that result would  be               by  first opposing the insolvency petition  in               the  first Court, and if he failed  there,  by               appealing to higher. authority". The principle adverted to in the above passage of the Bombay High Court appears to be correct.  In that case also, as  in the  present  appeal,  there was no  controversy  about  the "proper court" within the meaning of the 2nd explanation  to article 182. Coming now to the facts of the case at hand it is found that the appellant (decree-holder) was faced with resistance from the  respondent  judgment  debtor and  his  relations.   The appellant,  however  made abortive attempts to  execute  the mortgage  decree in order to obtain possession of  the  suit property.   Having failed to obtain possession by  means  of usual civil process, the appellant applied to the court  for

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police  aid  but the prayer was rejected.   Soon  after  the appellant  was dragged to the court by the respondent’s  son in a suit wherein both the appellant and the respondent were parties  although  the  respondent  was  exports.   If   the respondent’s  son  had  succeeded in  the  suit  the  entire foreclosure decree would have been a scrap of paper for  the appellant.   The  appellant therefore found in his  front  a hurdle   which  must  first  be  crossed  before  he   could successfully   execute  his  decree  in  order   to   obtain possession  of  the suit house.  No doubt  his  defence  was successful in the trial court but the first appellate  court partly accepted the appeal of the judgment-debtor’s son with reference  to  half of the share of the suit house  and  the decree  thereafter  was no longer the  original  foreclosure decree which he could execute. The form of the decree has already been set out above.   The decree  in the Civil Suit No. 75A of 1957 had thus a  direct and immediate connection with and effect upon the decree  in suit  No  27A  of 1952 sought to  be  executed.   The  nexus between the two is manifestly clear.  In such  circumstances it  is  obvious that the appellant’s  successive  ecphractic action in defending the foreclosure decree in different ways in  the  course of the lengthy litigation  until  its  final determination  in  the High Court are all steps  in  aid  of execution, of his foreclosure decree.  These steps to remove the   impeding   executing  the  foreclosure   decree   were absolutely  incumbent  upon the appellant to take  the  next move  in  furtherance of the execution  of  the  foreclosure decree  to  facilitate  the same.   These  being  therefore, necessarily  "steps in aid of execution" of the  foreclosure decree,  the  appellant’s fifth  execution  application  was within  time, being within three years from the date of  the final order in the High Court on January 1, 1962. It  should  also be remembered that there  was  a  perpetual injunction  restraining  the appellant  from  executing  the foreclosure  decree in Prakash Chander’s appeal  No.  37A/59 during the period from 3112-1958 to 21-10-1959.   Thereafter and the appeal was partly allowed 518 the perpetual injunction was directed in the decree  against half  of the suit-house.  In other words in  the  injunction against  the  decree in suit N.). 27A/52  was  never  raised fully at any time. It is clear that the original foreclosure decree in the form it was, was not capable of execution and the appellant’s all attempts  in  the series of litigation were to  restore  the said  decree to its original form for proper  and  effective enforcement  of the same.  The appellant carried  this  race upto the High Court and having finally stopped there, turned to  execute whatever is now left for enforcement.   Although directly  on  the point, the Privy Council in  Maharaja  Sir Rameshvar  Singh Bahadur v. Homeshvar Singh(’ while  dealing with  articles 181 and 182 of the Limitation Act  1908  laid down a kind of pragmatic principle in the following words They  (the Privy Council) are of opinion that,. in order  to make  the provision of the Limitation Act apply, the  decree sought  to be enforced must have been in such a form  as  to render it capable in the circumstances of being enforced.  A decree  so  limited in its scope as that of the  27th  July, 1906,  under  consideration  cannot  in  their  opinion   be regarded as being thus capable of execution". In the view thus taken in this appear it is not necessary to decide ’Whether article 182(4) could be invoked in this case on  the  basis of all implied amendment of  the  foreclosure decree as a necessary consequence of decree        in    the

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subsequent           suit.     It is also     not  necessary in  this appeal to deal with the alternative  submission  of the  appellant with regard to the theory of revival  of  his execution case earlier consigned to the records in 1956. In the result the appeal is allowed and the judgment of  the High  Court is set aside but in the entire circumstances  of the  case  the  parties will bear their own  costs  in  this Court. S. C. Appeal allowed. (1) (1921) 40 Madras Law Journal 1/6 519