Shib Lal vs Radha Kishen on 18 July, 1885

Allahabad High Court
Shib Lal vs Radha Kishen on 18 July, 1885
Equivalent citations: (1885) ILR 7 All 898
Author: S A Tyrrell
Bench: Straight, Tyrrell


Straight and Tyrrell, JJ.

1. This appeal is presented under the following circumstances: The plaintiff-respondent sued the defendant-appellant and certain other persons. He got a decree against those other persons, but the defendant was exempted from the decree, and costs were awarded to him against the plaintiff-respondent, and the former was thus a decree-holder for the amount of coats against the plaintiff-respondent. This decree was dated the 24th December 1878. On the 16th June 1880, the plaintiff sought to execute his decree against those other persona, and he sought to set off the costs awarded to the respondent against the amount due to him. On the 6th August 1880, the appellant preferred objections to his costs being set off in this manner, and, on the 2nd September 1880, his objections were disposed of. The appellant then, on the 19th July 1883, applied for execution of his decree for costs. The application has been rejected on the ground that it was not made within three years from the date of the decree. The appellant contends that his application was within time; that is, within three years from the date of the objection to the application of June 1880. In other words, he Contends that by filing his objections he took a step in aid of the execution of his own decree.

2. This contention is not sustainable. We think that Article 179 of the Limitation Act requires that the decree-holder should make a direct and independent application for execution of his own decree on his own account; and it is not sufficient to satisfy the requirements of the law to offer objections under the circumstances under which they were offered in the present case. Were we to allow this contention, we should have to hold that resistance to another person’s decree is a step in execution of a man’s own decree. In this view of the matter, we dismiss the appeal with costs.

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