1. The respondents Rukini Mohun Bose and Anando Kishore Bose obtained a decree against the appellant and others on the 15th August 1878 for possession of certain lands and mesne, profits thereof from the date of dispossession to the date of the recovery of possession. Rukini Mohun Bose was then not of age, and was represented by a guardian. The decree directed the amount to be fixed in execution under Sections 211 and 212 of the Code of Civil Procedure. Rukini Mohun attained his majority on the 17th April 1885. In execution of this decree possession was taken in the month of August 1880.
2. On the 4th of April 1882 the respondents applied to the Court for the ascertainment of the mesne profits. The Civil Court Amin was directed by the Court to make the necessary inquiry, and notwithstanding repeated reminders from the Court, the Amin not having completed his inquiry, the application was struck off on the 9th October 1882.
3. On the 18th September 1885 the present application was made for the ascertainment of the wasilat, and for the realization of the amount which might be fixed, by the attachment and sale of the judgment-debtors’ property. The judgment-debtors pleaded limitation, and the lower Court having overruled it, one of them has preferred this appeal.
4. The lower Court treated the present application as one for execution of a decree under Article 179 of the second schedule of the Limitation Act. It has overruled the plea of limitation upon two grounds: It has presumed that the reminders to the Amin appointed to inquire into the amount of mesne profits in the year 1882 must have been given at the instance of the decree-holders. These reminders in the lower Court’s opinion constituted steps taken in aid of execution; and as the present application is within three years from the last of these steps, the execution is not barred. The other ground is, that as one of the decree-holders was a minor, till within three years from the date of the present application, his remedy is not barred, under Section 7 of the Limitation Act, and as regards the other decree-holder, his remedy is equally not barred under Section 8, because he could not give a valid discharge without the concurrence of the other decree-holder, during the minority of the latter.
5. The lower Court is in error in thinking that under Section 8 of the Limitation Act, the remedy of the decree-holder, who was of age at the date of the decree, is not barred ; because the last part of that section, upon which the lower Court evidently relies, applies to a case of all the joint creditors or claimants being under a legal disability.
6. But it seems to us that the present application is not an application for execution of a decree.
7. The decree in this case is divisible into two parts : one for possession of land and the other for mesne profits. That part of it which directs possession to be awarded to the decree-holders is final. But the other part of it is merely an interlocutory decree, declaring that the decree-holders are entitled to recover mesne profits, and it would become final when the amount of the mesne profits would be fixed by the Court. The present application is therefore, an application by which the decree-holders moved the lower Court to make a final decree regarding mesne profits. Although in form it is an application for execution, in reality it is not so–(see Baroda Sundari Dabia v. Fergusson 11 C.L.R. 17; Dildar Hossein v. Mujundunissa 4 C. 629; contra Hem Chunder Chowdhry v. Brojo Soondury Debee 8 C. 89. In the last of these cases the first two cases were not cited, and we agree in the view taken in those two Rulings. But in the case of Baroda Sundari Dabia v. Fergusson 11 C.L.R. 17, the Judges were of opinion that the decree-holder is not bound to apply for making the decree complete within three years. But the provisions of Article 178 of the second schedule of the Limitation Act were not considered by the learned Judges. We are of opinion that that article applies to an application by a decree-holder for making the decree complete.
8. Applying this article to the present application, it seems to us that so far as the decree-holder, who was not a minor at the date of the decree is concerned, his remedy is barred. So far as he is concerned, the application should have been made within three years–at least, from the date of the delivery of possession of the lands decreed. But the remedy of the other decree-holder is not barred, because he attained majority within three years from the date of the present application. His remedy is not therefore barred under Section 7 of the Limitation Act. Section 8 has no application, because in our opinion the other decree-holder could not give a valid discharge without his concurrence. Upon this point our attention was called to the case of Ahamudden v. Grish Chunder Shamunt 24 C. 350. But that was a case of money due to joint creditors under a contract. In the present ease the judgment-debtors were made liable as wrong-doers. We are of opinion that in this case a discharge given by one of the decree-holders could not have been a valid discharge binding upon the other.
9. The remedy of the respondent Rukini Mohun Bose being not barred, and he being one of the two joint decree-holders, he should, in our opinion, be allowed to execute the whole decree under Section 231 of the Code of Civil Procedure. We make this order, because in our opinion the remedy only of the decree-holder, Anando Kishore Bose, is barred, but his right is not extinguished. We are aware of a conflict of decisions upon this point–Nursing Doyal v. Hurryhur Saha 5 C. 897; Krishna Mohun Bose v. Okhilmoni Dossee 3 C. 331; Ram Chunder Ghosaul v. Juggut Monmohiney Dabee 4 C. 283. But we agree in the view that the remedy only is barred. But we desire to guard ourselves from being understood to say that the remedy barred under a repealed Limitation Act would be revived under the Repealing Act, even if there be no express provision to that effect. We express no opinion upon that point.
10. The result is, that the order of the lower Court will be varied as directed above.
11. The appellant will pay the respondent’s costs.