JUDGMENT
1. Article 179 of the Limitation Act of 1877 provides a period of three years’ limitation for an application to execute a decree or order of any Civil Court, not provided for by Article 180, or by the Code of Civil Procedure, Section 230, to be computed from (a) the date of the decree or order; (b) (where there has been an appeal) the date of the final decree or order of the Appellate Court; and the question we have to decide in this case is, what construction is to be put upon the words, “where there has been an appeal.” Are these words to be read in their widest sense, as including every case in which there has been an appeal against the whole or part of the decree of the lower Court; or are they to be read in a more limited sense, in cases like the present, where a portion of the decree is not appealed against? For the appellant it is contended that these words must be read strictly, and that where there has been an appeal, whether against the whole or part of the decree of the first Court, limitation does not begin to run till the date of the final decree of the Appellate Court, though that decree does not, and cannot, affect any portion of the original decree. For the respondents it is contended that, where, as in this case, there are really separate decrees, though on one piece of paper, and there is an appeal against part of the decree only, limitation, so far as the unappealed from part of the decree is concerned, begins to run from the date of the original decree.
2. There does not appear to be any precise authority on the question before us. In Ram Charan Bysak v. Lakhi Kant Bannik 7 B.L.R. 704 a Full Bench of this Court held that the decree passed by the Appellate Court becomes the final decree in the suit, following the decision of the Madras High Court in Arunachellathudayan v. Veludayan 5 M.H.C. 217. The decree, however, in the Full Bench case was a joint decree, and it was not necessary to consider the effect of an appeal against part of a decree only. In Kisto Kinker Ghose Boy v. Barodacant Singh Boy 10 B.L.R. 101 their Lordships of the Privy Council seem to doubt whether these last mentioned cases were rightly decided, though they did not express dissent from them. In this case also the decree of the first Court was a joint decree and the whole decree was before the Court. In Gungamoyee Dassee v. Shib Sunkur Bhuttacharjee 3 C.L.R. 430 the appellant obtained a decree on the 12th November 1872, by which the respondents and one Choitun were made jointly and severally liable for a certain sum of money. The decree was ex parte against the respondents, but not so as against Choitun who appealed successfully to the High Court. On the 1st August 1876 the appellants took out execution against the respondent. It was held by the District Judge that, though Clause 2 of Article 167 of the 2nd schedule of Act IX of 1871 (corresponding with Article 179 of the present Limitation. Act) provided that three years’ limitation was to run, where there had been an appeal, from the date of the final decree or order of the Appellate Court, yet it could not apply where co-defendants, non-appellants, were in no way affected by the order on appeal. The High Court, however, reversed this decision. Morris, J., said : “We see nothing in the terms of the Act to warrant such a conclusion, as this. Here the decree was admittedly a joint decree. Owing to the appeal of Choitun, the decree was amended, and this amended decree, therefore, became the final decree in the cause. The Judge is not justified in supposing that there were two final decrees in this suit–one applicable to the non-appealing defendants and the other to the appealing defendant alone. But even if a doubt could exist on this point, the words of the Act are so wide and comprehensive that the appellants are clearly entitled to the benefit of their natural import. This is the view that has been taken by another Bench of this Court–In re Dolley Chand v. Nirban Singh–in which precisely the same point was raised and decided on June 18th, 1878. Their Lordships say: There are no qualifying words as to by whom the appeal is to be made, or what the nature of the appeal to be made should be; but simply that when there has been an appeal, the time shall begin to run from the date of the final decree or order of the Appellate Court. The Court is not authorised to make the terms of the Limitation Act more stringent against the decree-holder than they actually are.” That case approaches nearest to the present one. But it is to be observed that the decree was joint and several, and the whole decree was before the Court of Appeal.
3. In Mullick Ahmed Zumma v. Mahomed Syed 6 C. 194, there was a decree for possession with costs against three defendants. Possession was claimed by only one of the defendants. He appealed, and was successful before the Subordinate Judge. The plaintiff appealed to the High Court, and obtained a decree restoring the decision of the first Court. More than three years after the date of the original decree, the plaintiff applied to execute it against one of the defendants who had not appealed. The District Judge held upon the authority of Hur Proshad Roy v. Enayet Hossein 2 C.L.R. 471 a case which we shall notice hereafter, that the application was barred. The High Court reversed this decision. Pontifex, J., said : “The reason why in that case it was held that limitation would apply was because the appeal there was on the part only of a ten-pie shareholder of the property, leaving the decree capable of execution against the remainder of the property which could not be affected by the result of that appeal. But in the present case the appeal of the one defendant related to the whole case of the plaintiff, and he was successful in getting the suit dismissed by the lower appellate Court, which would have deprived the plaintiff of his right to any costs at all. In special appeal the plaintiff succeeded in getting the Judge’s decree reversed; and therefore the original decree for costs was restored.” In this case again the decree was joint, and the appeal related to the whole case.
4. These appear to be the only authorities in support of the appellant’s case. In none of them was the express point that is raised here decided.
5. The authorities most applicable to the respondent’s case are Wise v. Rajnarain Chuckerbutty 10 B.L.R. 258 : 19 W.R. 30 and the case already referred to of Hurproshad Roy v. Enayet Hossein 2 C.L.R. 471.
6. In the first of these cases the suit was for arrears of rent against two persons, and a decree was made as against one, for the rent for a certain period, and as against the other for the remaining period, Execution was taken out against one of the defendants. Subsequently an application was made for execution against the representatives of the other defendant, and it was held to be barred. On appeal to the High Court the following question was submitted for the opinion of a Pull Bench: “Whether in the case of such a decree as was sought to be executed in this case, proceedings in execution against one of the defendants are sufficient to prevent the law of limitation applying to process of execution against the other.” This question was answered in the negative, Couch, C.J., saying “Although these persons were joined in the suit in this way, yet we must treat the decree as what it must have been by law–a decree against one person for the rent of one period, and a decree against the other person for the rent of another; and I think such a decree as this, though it is on one piece of paper, is in fact two decrees, a separate decree against each for the sum for which each is liable. When we come to apply to that the terms of Section 20 of the Law of Limitation, there is really no difficulty ; the decree is to be kept in force against each, and to be treated as a separate decree against each in such a case as this, as it would be in the case of persons sued for contribution, because it is a separate liability, and each is liable only for his own share. I think that, although the decree is made in one suit, it is in reality and substance a separate decree against each for the portion for which each is declared to be liable.” In the other case. Hur Proshad Roy and others obtained a decree against Muzhur Hossein and Enayet Hossein for possession of certain property. This decree was reversed on the 6th April 1872, so far as concerned the property in the hands of Muzhur Hossein. In August 1872, an application was made for execution, and some steps were taken to put Hur Proshad into possession. On the 30th May 1873 Enayet Hossein objected to the execution proceedings, on the ground that they had been carried on without his knowledge, and that execution had become barred by limitation. His application was refused. He then sued Hur Proshad and his co-plaintiffs in the previous suit to have the execution proceedings of 1872 declared invalid and inoperative, on the ground that the decree was barred by limitation. Both the lower Courts concurred in granting the decree asked for, and their decisions were upheld in this Court. The Court said: “The original decree was in form made against the three defendants collectively; some of them appealed, but their appeal was dismissed on the 23rd May 1869. Muzhur Hossein, one of the appellants, preferred a special appeal, but not against the whole decree so as to give the Appellate Court jurisdiction under Section 337 to reverse the decree altogether. His appeal only related to his own ten-pie share. As to the rest of the subject of dispute and the remaining defendants, the judgment of the 23rd May 1869 was final; execution of the decree against them could not have been stayed in consequence of Muzhur Hossein’s appeal, and no question between them and the decree-holder was dependent on the result of Muzhur’s appeal. It is obvious that, though the decree was drawn up in the form of a single order, it did in fact incorporate in that order separate decrees against Muzhur and the others, and that it did not relate to property in which the defendants had such a common interest and a common defence that the appeal by any one imperilled the whole decree. The reason for suspending the operation of the law of limitation during the tendency of an appeal is, that it is manifestly undesirable to force an execution of a decree, while there exists any doubt as to the rights of the decree-holder against the appellant; but this reason does not apply to such a case as this, in which there had been a final determination of rights between the decree-holder and the present plaintiff which could not be re-opened by the separate appeal of Muzhur Hossein.”
7. The reasons given in these two cases for holding that limitation continued to run seem to us to apply clearly to this case. Here the cause of action against the defendants Abdul Hye and Syed Wajiruddin was totally distinct from the cause of action against the defendants Mussamut Batulan and Abdul Huq, and separate suits might have been brought against each set of defendants. Though there was only one suit, yet there really were separate decrees against each set of defendants. The defendants had no such common interest that an appeal by one set would imperil the whole decree; in fact, if there had been a final decree against all the defendants, it would have had to be executed against different properties.
8. The plaintiff could not object to the decree so far as it affected the defendants Abdul Hye and Syed Wajiruddin. The defendants Mussamut Batulan and Abdul Huq could not have objected to the decree as far as they were concerned, nor as against their co-defendants who accepted their liability. They could not have obtained a reversal of the whole decree under Section 544 of the Civil Procedure Code, for it did not proceed on grounds common to all the defendants. The decree which it is sought to execute is the original decree which became final as against the defendants Syed Wajiruddin and Abdul Hye, when the period for appealing against it had expired. If the plaintiffs had then taken out execution those defendants could not have resisted execution on the ground that an appeal was pending with respect to a part of the decree which did not affect their liability. For even if the High Court had held that the defendants Mussamut Batulan and Abdul Huq were sureties, that would not have cut down the liability of the other defendants as principals.
9. We think, therefore, that there were separate decrees against each set of defendants, that there was no appeal as against the decree affecting the respondents in this appeal, and that the Judge was right in holding that the application for execution was barred by limitation. We dismiss the appeal with costs.
