Kassam v. Ghalib Civ. App. 17-D-69; 27/5/70; Georges, C. J.

Kassam v. Ghalib Civ. App. 17-D-69; 27/5/70; Georges, C. J.

The decree holder got his judgment on 24^th April, 1958. The record discloses that he must have applied for execution on or about 30^th September, 1960. On 22^nd October, 1960 an order was made for the payment of the judgment debt by instalments of Shs. 500/- monthly with the usual default clause. On 19^th February, 1961 a warrant for the arrest of the judgment debtor was issued. On 20^th February, 1961 he was committed to prison for six months. The matter then fell into abeyance. On 7^th November, 1968 another application for execution was filed. In the normal course a notice to show cause was issued to the debtor. He appeared and argued that the judgment was statute barred since no application for execution had been made within three years of the last application as required by section 182 of the Indian Limitation Act which he contended governed the case. The decree holder contended that the appropriate law of limitation was to be found in section 39 of the Civil Procedure Code 1966 and that once an application for enforcement had been made within three years of the date of the decree a fresh application could be made any time within twelve years of that date. The trial magistrate accepted the contentions of the judgment debtor. On appeal to the High Court –

            Held: (1) “The view of the Indian Courts and the view taken by the trial magistrate was that section 182 applied to this case and that since there had been no application for execution, then the application now under consideration was statute barred. I find great merit in this view. It seems to me to give full effect to both section 182 of the Indian Limitation Act and section 39 of the Civil Procedure Code. Quite obviously under section 182 Clause 5 successive applications for execution could be made ad infinitum provided that each was made within three years of the last. Section 39 of the Civil Procedure Code makes this impossible by providing an absolute limit of twelve years. This seems all the more sensible when it is noted that section 39 of the Code only lays down the period for fresh applications. It envisages that a first application has already been made. Section 182 of the Indian Limitation Act prescribes that this must be made within three years ….. This is not, however, the view taken by the Courts in Eastern Africa. The precise point was considered in the case of Maria Blandina Saldanha de Souza & another v. C. F. Campbell Clause and others (1942) 14 Kenya Law Reports, 56. The legislation there being considered was Kenya legislation but the language of the enactments are such that no distinction can be drawn on that basis. The court there by a majority (Sir Joseph Sheridan C. J. and Law Ag. C. J., Sir Jacob Barth C. J. dissenting) held, to quote the headnote:- “Where an

Application for execution of a decree for the payment of money or the delivery of property is made and granted within the period prescribed by Article 179[Section 182 of the Indian Limitation Act] then the law of limitation as laid down by section 230 [see s. 39 of the Civil Procedure Code 1966] applies and Article 179 has no further application.” “I consider my self bound by the decision of the Court of Appeal for Eastern Africa which is directly in point and not distinguishable.” (2) “ [The Counsel] pointed out that the twelve years limit had now been reached and that I should dismiss the appeal in any event because the decree had in any event become unenforceable. I disagree. The fresh application was not ‘present after the expiration the expiration of twelve years’. It can be dealt with”. (3) Appeal allowed. Matter remitted to the District Court.