Gulzari Lal Bhargava vs Murari Lal Bhargava
1970 Latest Caselaw 125 Del

JUDGMENT

1. This execution first appeal is from the order dated January 7, 1965 of the Sub-Judge, I Class, delhi, whereby he dismissed the appellant's objections and held that the execution application filed on behalf of the decree-holder on April 27, 1963 was within time. The decree in this case was passed on January 8, 1960 on the basis of an award dated August 8, 1959.

2. The relevant portions of the award, which was made a rule of the court and was incorporated in the decree, provided, inter alia, in its operative part as follows:

"1. Shir Gulzari Lal (the judgment-debtor) will pay to Shri Murari Lal (the decree-holder) a sum of Rs. 4605.74 within a month of this award. 2. xx xx xx 3. xx xx xx

4. That Shri Gulzari Lal will pay to Shri Murari Lal testing charges for 194 cylinders (referred to under item No. 4 of Schedule M) on being supplied the receipt of the manufacturers' charges for testing and will replace such of them as are found unfit for use according to the testing report and in case of default will pay at the rate of Rs. 85 per cylinder not replaced within one month of the receipt of testing report. 5. xx xx xx

6. It is made clear that in the case of non-compliance of the aforesaid directions each party will be entitled to enforce each claim separately as per the ward against the other in accordance with law. Each direction will be separately enforceable and enforcement will not be dependent on other directions."

The first execution application was filed on December 29, 1962 for the recovery of Rs. 4605.74 mentioned in item No. 1 of the award as reproduced above. Being fully satisfied, this appliction was ordered to be consigned to the record room as dismissed on March 30, 1963. The present applciation onf March 30, 1963. The present application was filed on April 27, 1963 for the purpose of executing item No. 4 of the award as aforesaid. In an application under Section 47 of the Code of Civil Procedure on behalf of the judgment-debtor, an objection was raised that the application was barred by time. It was stated that the earlier application for execution dismissed on March 30, 1963 was of no help the save limitation, as that related to an entirely independent item of the decree. Acording to clause 6 of the decree compliance or non-compliance with one direction in the decree had no effect on the other directions. Each direction was independent of the other and was enforceable independently and separately. In fact, the decree consisted of a numbe of decrees on each item. An execution application to enforce one item, therefore, could not be pressed into service to save limitation for the execution application in respect of another item of the decree. This contention of the judgment-debtor, however, was rejected and the learned Sub-Judge held that an application for partial execution of the decree was a step-in-aid of execution and that it extended the period of limitation for a subsequent application. He therefore held that the present application was within time and allowed the decree-holder's execution application to proceed. The judgment-debtor or contests this finding of the learned Sub-Judge in this appeal.

3. Mr. R. L. Aggarwal, the learned counsel for the judgment-debtor-appellant, submitted that although there is only one decree, it covers several distinct items for which separate suits could have been filed. The award, which is now incorporated in the decree had independently dealt with each separate item. It is thus a case of several decrees having been passed although they have been set out in one decree. Under these circumstances the rule of limitation, contended the learned counsel, would be applicable separately to each item of the decree and an application for execution of the decree in respect of the sum recoverable under one item would not, under Article 182, Clause (5) of the Limitation Act, 1908, protect from the ba of limitation, the decree in respect of sum recoverable under other items of the decree. In support he relied on Dhirendra Nath Sarkar v; Nischintapore Company 36 Ind Case 398 = (AIR 1918 Cal 929). In that case, one decree had been passed in respect of arrears of rent recoverable in respect of three separate tenancies held by the defendants. The sums due in respect of each of the tenancies had been separately specified in the decree itself. It was held, the position was precisely the same as if the plaintiff had brought three distinct suits against the defendants, one in respect of each tenancy and had obtained three different decrees. The rule of limitation was held to apply separtely to each sum decreed against each tenancy. The execution application in respect of sum leviable in respect of one of the tenancies could not protect, it was held, the decree in respect of the sum recoverable under the other tenancies from the bar of limitation.

4. The learned counsel for the respondent placed his reliance on Maduri Lakshminarasimham v. Maduri Suryanarayana Air 1948 Mad 246, where in a partition suit a decree was passed for delivery of certain property, for payment of mesne profits up to the date of suit, for mesne profits for subsequent period and for costs. All the reliefs were granted against the same defendants. Petition for the execution of the decree as to past mesne profits and costs was struck off on part satisfaction. Another application in execution for the recovery of the amount of subsequent mesne profits was objected to as time-barred on the ground that the decree awarding future mesne profits must be treated as a separate decree. The division Bench of the Madras High Court held that there was only one decree within the mening of Article 182, notwithstanding that it included seveal reliefs based upon distinct causes of action and that it was open to the decree-holder to rely upon cl (5) and ask for limitation to be calculated from the date of the final order in the previous execution application notwithstanding that that petition sought execution of a relief other than that sought in the subsequent one. This judgment has been followed in certain other cases also.

5. But, the present case is entirely different. It is not a case of decree granting past and future mesne profits, which can be said to be parts of the same transaction. It is a decree dealing entirely with separate and distinct items. One of the items dealt with by the decree was, some right of easement claimed by the respondent. Another item dealt with the recovery of some testing charges for certain gas, cylinders and so on. The most important and decisive factor is that the decree itself contains a clear direction to the effect that each party is entitled to enforce each claim separately; and that each direction has been decreed to be separately enforceable independently of the other directions in the decree. The decree, therefore, clearly contains items which have been finally decree to be not interdependent, in any way. None of the items in the decree affects in any manner the other items. Execution in respect of one item, therefore, cannot serve to protect limitation for the execution of the other items. Under these circumstances, the execution application, which was dismissed on March 30, 1963 is of no use to protect from the bar of limitation, the decree in respect of a different and distinct item, which is now sought to be enforced. The present application, therefore, cannot be saved from the bar of limitation under any of the clauses of Art. 182 of the Limitation Act, 1908.

6. In view of the above, the appeal is accepted, the order of the learned Sub-Judge, I Class, Delhi, is set aside and the execution application filed on April 27, 1963 is held to be barred by time. There shall, however, be no order as to costs.

7. Appeal allowed.