De Souza and Another v De Souza and Another (C.A. 31/1932.) [1932] EACA 52 (1 January 1932)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya), SIR JOSEPH SHERIDAN, C. J. (Tanyanyika), and LAW, Acting C. J. (Uganda).

MARIA BLANDINA SALDANHA DE SOUZA and VICTOR. FRANCIS SALDANHA, trading as M. R. DE SOUZA & CO.

(Appellants) (Original Plaintiffs).

C. F. CAMPBELL CLAUSE, JOSEPH E. DE SOUZA and LAWRENCE I. FERNANDES, all trading as THIKA CASH STORES (Respondents) (Original Defendants).

## C. A. $31/1932$ .

Indian Limitation Act, 1877, Art. 179-Period of limitation for execution of a decree—Application for execution.

Indian Code of Civil Procedure, 1882-Section 230, in relation to the Kenya Code of Civil Procedure and Rules thereof.

Held (31-12-32):-By SIR JOSEPH SHERIDAN, C. J., and LAW, Acting C. J.: Where an application for execution of a decree for the payment of money or delivery of other property is made and granted within the period pres

BY SIR JACOB BARTH, C. J. (dissenting): In the absence of<br>section 230, Civil Procedure Code, a decree could be kept alive<br>indefinitely by making fresh applications within the period pro-<br>vided by Article 179. The object and

Figgis for Appellants.

Phadke for Respondents.

This appeal arose out of an application made on the 3rd August, 1932, by the appellants (plaintiffs) against the third defendant, Lawrence I. Fernandes. The application for execution eventuated as the result of a judgment entered by consent against the first and third defendants on 9th October, 1923. On the application for the attachment referred to, a notice to show cause was issued directed to the said third defendant, who appeared by Mr. Phadke on 23rd. September. 1932, and submitted his objection to the application on the ground that it was barred by the Limitation Act of 1877.

The Order of the Supreme Court $(26-9-32)$ was as follows:—

" The plaintiffs recovered judgment by consent against the defendant, Lawrence I. Fernandes and another, for the sum of Sh. $7.589/79$ . The decree is dated the 9th of October, 1923. In September, 1924, an application was made for the attachment and sale of property and goods belonging to the defendants. That attachment was raised in October, 1924. Since that date there has been no other application for attachment until the month of August in this year (1932) when an application was<br>made to attach the defendant Fernandes' salary. Thereupon a notice to show cause was issued. An objection has been taken that the application is barred by the Limitation Act of 1877.

It has been argued before me that Article 180 of the Limitation Act and not Article 179 applies. That question has been specifically dealt with in the case of Anderson and another v. Phaker Dass, X, E. A. L. R., p. 73 (see also Kanji Dhermsi and another v. Shah Lukhamsi Rajsi, Vol. XI, E. A. L. R., p. 46). The former case cites with approval the case of Beharilal $\dot{v}$ . Barness, Punj. Rec. No. 109 of 1889.

I have been invited to consider that decision and if I do not agree with it to over-rule it. That decision established the law on this matter a number of years ago and did I disagree with it I should hesitate to make any change even were it not the decision of so distinguished a lawyer as the present Chief Justice.

But on consideration I see no reason for disagreeing with that decision.

As I read Article 179 (4) it allows a period of limitation of three years from the last application to the Court for execution or of some other step in aid of execution of the decree or order.

If Article 179 were unqualified in any way then a decreeholder might apply, say, every two years for execution and keep his judgment alive indefinitely. To prevent such a state of affairs section 230 of the Civil Procedure Act, 1882, re-enacted in section 35 of the Civil Procedure Ordinance, 1924, provides a period of limitation for making applications for execution to a period of twelve months from the date of the decree.

The language which I have used is only a less distinguished although possibly more clear way of saying what was said in Beharilal v. Barness, viz., "The law of limitation . . ." is contained in Article 179. Schedule II of the Limitation Act. Section 230, Civil Procedure Code, does not contain the law of limitation, but fixes a period after which an application for execution shall not be granted. The Code of Civil Procedure does not restore a right which the law of limitation prevents from being executed.

In that the present application is made some eight years after the previous application or some step in aid of the execution of the decree or order, I must hold that it is barred by limitation.

The application is accordingly dismissed with costs. Such costs to include only the application to dismiss the affidavit in support and the attendances on 23rd and 26th September."

From that Order the plaintiffs (present appellants) appealed. maintaining in their grounds of appeal that the Order was bad. in law and that the learned trial Judge erred in holding that-Article 179 of the Limitation Act applied in this case.

Figgis submitted that Article 179 did not apply and relied on the words therein "not provided for." He submitted that section 230 of the Indian Code of Civil Procedure must be read with Article 179 in order to eludicate the intention of that article. In this construction he relied $\quad\text{on}\quad$ Ganapathi $v$ . Balasundara (1884, 7 Madras 540 at 543 and 544; Kunhi Mannan v. Seshagiri Bhakthan (1882), 5 Madras 141; Anderson and another v. Phaker Dass, 10 E. A. L. R at 74; Coverdale & Stanley v. Salch Mohamed, 13 E. A. L. R. 43.

Phadke submitted that the law of limitation is to be found in the Limitation Act and that any reference to any other Code or Ordinance is inapt. Section 230 of the Indian Civil Procedure Code is negative. Case for the respondents is much stronger under section 135 of the Civil Procedure Ordinance. There cannot be two periods of limitation. The purpose of section 230 of the Indian Code is to prevent application for execution after twelve years. 1891, 3 Punjab References 8; 1894, 3 Punjab References 12; 1894, 3 Punjab References 76. Kunhi Mannan v. Seshagiri Bhattan (supra). The qualification "not provided" for " in Article 179 must be interpreted to mean except as provided for in a portion of Article 179.

Figgis replied.

Sir Joseph Sheridan.—There are two provisions of law which require examination in this case. The first is Article 179of the Indian Limitation Act, which in so far as it is material, provides: -

"For the execution of a decree or order of any Civil Court not provided for by No. 180 or by the Code of Civil. Procedure, section 230."

The second is section 230 of the Civil Procedure Code, 1882, which provides: $\longrightarrow$

"Where an application to execute a decree for the payment of money or delivery of other property has been made under this section and granted, no subsequent application to execute the same decree shall be granted after the expiration of twelve years from any of the following dates, namely: (a) the date of the decree sought to be enforced or of the decree, if any, on appeal affirming the same, or $(b)$ where the decree or any subsequent order directs any payment of money, or the delivery of any property, to be made at a certain date-the date of the default in making the payment or delivering the property in respect of which the applicant seeks to enforce the decree."

Now as I read Article 179 it clearly recognizes that a period. of limitation was prescribed by section 230 of the Civil Procedure Code, 1877, which was in force prior to the introduction of the 1882 Code. To my view the bracketing of Article 180 of the Limitation Act and section 230 of the Civil Procedure Code as being excepted from the provisions of Article 179 speaks for itself. If cases coming within the provisions of Article 180 are not controlled by Article 179 how can it be said that cases. coming within section 230 of the Civil Procedure Code are controlled by Article 179? The Legislature in referring to Article 180 and section 230 makes no differentiation. If one is excluded from the provisions of Article 179 so is the other. Mr. Phadke has submitted that the language of Article 179 is unfortunate in its reference to section 230. The language is clear and can be interpreted without a contradiction resulting to my mind. I would say that if there were any doubt-and I have none-as to a recognition in the Limitation Act that section 230 provides a period of limitation independent of Article 179 it would be resolved by the opening words of Article 178 reading "Applications for which no period of limitation is provided elsewhere in this Schedule. or by the Code of Civil Procedure, section 230..."

Section 230 provides that the application for execution of the decree must be made and granted before any question can. arise of there being a period of twelve years from the dates. mentioned in the section. If an application for execution of a decree for the payment of money or delivery of other property is made and granted within the period prescribed by Article 179 then the law of limitation as laid down by section 230 applies and Article 179 has no application.

There have been different interpretations put upon these provisions, as revealed by Indian cases which I have read and for that reason'I feel myself more at liberty to express a different view from that arrived at by the learned Judge in the Court below. I would allow the appeal with costs and remit the application to the Supreme Court to be dealt with on the merits. the costs in the Court below to follow the event.

Law, Ag. C. J.—The facts in this case are not in dispute. Judgment was obtained by appellants on the 9th October, 1923. On the 6th September, 1924, they applied for the attachment and sale 'of the respondents' property. An Order was madethereon accordingly on the 17th September, 1924. That attachment, on application by appellants, was ordered to be raised on the 27th October, 1924. Nothing further was done by way of execution of the decree till the 4th August, 1932, when appellants applied for the attachment of the third respondent's salary. Objection was taken on his behalf that the application was barred by limitation. Learned Judge, who heard the application, decided it was so barred by reason of Article 179. Schedule

II of the Indian Limitation Act (XV of 1877, as amended by subsequent acts) and that section 230 of the Code of Civil Procedure, 1882 (Act XIV of 1882, as amended by subsequent acts) did not apply, in as much as it does not contain the law of limitation, but fixes a period after which an application for execution shall not be granted, and that the Code of Civil Procedure does not restore a right which the law of limitation prevents from being executed. The learned Judge based his decision on the case of Beharilal v. Barness, Punj. Rec. No. 109 of 1889, which was followed in the case of Anderson and another v. Phaker Dass (1924-1926), 10 E. A. L. R., page 73.

The matter is not without difficulty, owing to various decisions which have been given from time to time by different Indian High Courts. There are as follows:-

In Kunhi Mannan v. Seshagiri Bhakthan, 1882, I. L. R. 5 Madras, page 141, Innes, J., observed:

"The right to execute a decree has been much curtailed by the provisions of section 230 of the Civil Procedure Code, and the provisions of the Limitation Act should be construed as far as possible so as to prevent the defeat of bona fide endeavours to secure the fruits of a decree once obtained."

Muttusami, J., remarked: -

"The latter part of section 230 restrains judgmentcreditors from keeping alive their decrees beyond twelve years by fruitless steps in aid of execution without earnestly endeavouring to obtain satisfaction of their decrees. The Act of Limitation is one which takes away the remedy and ought to be construed in case of doubt so as to advance the remedy."

. It is clear from their judgments in that case that both those learned Judges regarded section 230 as controlling the effect of Clause 4 of Article 179 with the object of advancing bona fideendeavours by judgment-creditors to execute their decrees.

In Ganapathi v. Balasundara and others, 1884, I. L. R. 7 Madras, page 540, the learned Judges held that Article 180 was not affected by the provisions of section 230. In explanation thereof they said:-

"Article 179 expressly refers both to Article 180 and section 230, but Article 180 is absolute and contains no reference to section 230. Such a reference might have been expected if this article (i.e., Article 180) was also intended to be in any way controlled by that section (i.e., section $230).$

That case is important as showing that Article 179 must be considered as controlled by section 230, where circumstances so require.

In Gholam Jilani, etc. v. Ganga Ram, etc., 1891, 3 Punj. Ref., page 8, there appears a short note to the effect that. Plowden, $J:$ , held:—

"That section 230 of the Civil Procedure Code does not contain the law of limitation for applications to execute a decree, but fixes a period after which such an application, though not barred by the law of limitation, shall not be granted."

The reasons for that learned Judge's conclusions are not given. In Jhandu, ctc. v. Mohan Lal, 1894, 3 Punj. Ref., page 76, there again appears a short note to the effect that the same learned Judge and Frizelle. J., held:-

(a) "That the enactment (i.e., section 230) limiting the period during which execution shall be granted of a decree once put in actual execution is one made for the benefit of the judgment-debtor and protects them from being subject, without limit in point of time, to execution proceedings.

(b) "That section 230 applies only to applications which are not barred by law of limitation under Article 179. On. the other hand, applications provided for by section 230, Civil Procedure Code, are excluded from the operation of Article 179, Schedule II, Limitation Act."

Here again, it is observed that no reasons are given for the learned Judge's conclusions, but they certainly suggest that section 230 contains a Rule of Limitation; this, of course, conflicts with the earlier decision of Gholam Jilani referred to above.

It has been argued before us in this appeal that section 230 is not a law of limitation. With this I am unable to agree, not only because of its very wording but because it is recognized to be so by the specific language of the Limitation Act itself in its Article 178. Furthermore, Article 179 clearly, explains that it is to be applied in those cases of execution of decrees not provided for by Article 180 (which need not be considered in : this appeal) or, by section $230...$

In Coverdale & Stanley v, Saleh Mohamed, 1931, 13 K. L. R., page 43, it was held by Barth, C. J., that section 230 was inapt in as much as no application for execution had been granted and therefore that Article 179 applied. It appears from that judgment that the learned Chief Justice might possibly have applied section 230 had the application for execution been granted.

After a very careful consideration of the cases, I am of opinion, and so hold, that section 230 is a law of limitation which must be applied in a case where an application to execute a decree for the payment of money has been made and granted, as in the present case under appeal. The period of limitation to be applied in this case, therefore, is twelve years from the 17th September, 1924. Accordingly, the appellants' application for further execution on the 4th August, 1932, was not barred by limitation.

With regard to Clause 4 of Article 179, to apply for or to take some step in aid of execution, in my view, falls short of the more complete and further step of obtaining the making of an Order under section 230. In the former case there is not the obvious and earnest endeavour to execute the decree, whereas in the latter case the decree-holder shows beyond question that he intends to pursue his remedy and get the benefit of his judgment.

In the circumstances, therefore, I would allow the appeal with costs, set aside the learned Judge's Order, and remand the appellants' application for execution to be proceeded with in due course.

I have based the foregoing remarks upon a consideration of the case under section 230, in view of section 104 read with section 2 (3) of the Kenya Civil Procedure Code 1924. The case certainly appears to have been argued on that basis before the learned Judge who heard the application.

SIR JACOB BARTH, C. J. (dissenting).—In this appeal it is sought to reverse a finding of Thomas, J., of the Supreme Court of Kenya that the period of limitation for making application for the execution of a decree is to be found in Article 179 of the Second Schedule to the Indian Limitation Act, 1877, which is the law applicable to this Colony, and that section 230 of the Indian Civil Procedure Code does not extend the period of limitation after an application for execution has once been made and granted to twelve years from the date of the decree but merely makes twelve years the period within which applications can be made within the limitations prescribed by sub-article (4) of the aforesaid Article 179.

The article is not easy of construction, but in my judgment section 230 of the Civil Procedure Code must be regarded as limiting the application of Article 179 of the Limitation Act to twelve years. Article 179, sub-article (4) provides that the period of limitation, i.e., three years, runs where an application for execution or to take some step in aid of execution has been made from the date of so applying. Any number of such applications can be made.

In the absence of section 230. Civil Procedure Code it would be possible to keep alive a decree for the purposes of execution indefinitely. Section 230 provides that where an application to execute a decree has been made and granted no subsequent -application to execute the same decree shall be granted after the expiration of twelve years from the date of the decree sought to be enforced or of the decree, if any, on appeal affirming the same, but in my opinion any such subsequent application must be made within three years of the last such application. The phrase: "Not provided for by the Code of Civil Procedure, section 230" used in Article 179 of the Limitation Act does not in my opinion mean that such section 230 substitutes something else for Article 179, but is a reference to the provisions of such section for the purpose of showing how the application of the article has been modified by the section.

In this case an application for execution was made and granted on 17th September, 1923. No further application was made until 3rd August, 1932. The law has, in my judgment, been correctly stated by Mulla in his Civil Procedure Code, 1930, in dealing with similar provisions in the 1908 Indian Civil Procedure Code and Limitation Act, 1908.

Holding the above view on the construction of the article. I am of opinion that the appeal should be dismissed with costs.

The judgment of the Court was: —

Appeal allowed with costs and application remitted to the Supreme Court to be dealt with on the merits.