Fathili v Kara (C.C. 53/1930.) [1933] EACA 4 (1 January 1933)

## ORIGINAL CIVIL.

## Before GAMBLE, Ag. J.

#### FATHILI (Plaintiff)

$\overline{v}.$

# HASHAM KARA (Defendant). C. C. $53/1930$ .

# Indian Limitation Act, Article 179—Date from which limitation begins to run on decree.

Held (28-7-33).—That taxation of costs in a decree for costs is a step in execution.

**Held Further.**—That where a decree is for costs only, and the bill is<br>taxed later than the decree, this fact may be taken into considera-<br>tion by the Court in execution proceedings in relation to the<br>question of limitatio

Trivedi (for Hopley) for Plaintiff

Judament Debtor in person.

The plaintiff sued the defendant for the return of certain cattle and calves, or, in the alternative, Sh. 3,040, the value thereof, with interest and costs. On 26th May, 1930, the suit was dismissed with costs to the defendant. On 28th May, 1930, the defendant filed his bill of costs for taxation. On 19th August, 1930, the notice of taxation was, after repeated efforts had been made to find him, tendered to the plaintiff, but was refused by On the 23rd August, 1930, the taxing officer held that him. service had been effected, and taxed the defendant's bill of costs. The decree issued under date of 26th May, 1930. On 13th July, 1933, the defendant (judgment creditor) made an application forattachment of certain assets belonging to the plaintiff (judgment debtor), and in the application for execution it was stated that the date of the decree was 23rd August, 1930-the date of taxation. On the hearing of the application for execution, the plaintiff (judgment debtor) appeared in person and pleaded the Statute of Limitation.

Trivedi submitted that, although the decree was dated 26th May, 1930, the taxation was not effected until the 23rd August, 1930, and that no blame could attach to his client for the delay. The taxation of the bill of costs, which was the subject-matter of the decree, was in effect a step in the execution.

ORDER.—The original plaintiff in this suit was non-suited with costs (to be taxed) by Dickinson, J., on $26-5-30$ . He now appears on a notice to show cause why certain live stock at Simba should not be attached and sold in execution of the decree for costs.

The date of this notice to show cause is 12-7-33, and the plaintiff contends that the application is barred by Article 179 of the Limitation Act, more than three years having elapsed since the date of the decree.

At first sight I was inclined to the view that this contention must succeed, but on consideration of the facts of this case I inclined to the view that the application is not time-barred under proviso 4 to Article 179.

The short point is whether the taxation of costs is a step in aid of execution. I am of the opinion that it is, more particularly in a case of this nature, where judgment was for costs only. Until the costs had been taxed, there was nothing for which execution could issue. The judgment of Dickinson, J., was, in fact, a blank judgment, the blanks of which were to be filled up on the certificate of taxation being filed. I would refer to the case of Ex parts Crump, 64 L. T. 799. This case gives no reason for the judgment, but the decision is based on the practice of the taxing master.

I would also cite the case of Koormayya v. Krishnamma *Naidu*, 17 Madras at p. 166, where the following passage occurs: " It seems to us that in deciding whether any particular act is or is not an application for or step in aid of execution, it is the nature of the act that must be looked to and not the time at which it may possibly be done."

In the case I am dealing with, judgment was pronounced on 26-5-30; a bill of costs was filed for taxation two days later, and a notice of taxation issued for 31-5-30, but owing to the difficulty experience in tracing the plaintiff it was not served until 19-8-30. Even when traced, the plaintiff refused to accept service. The bill of costs was eventually taxed on 23-8-30.

It seems clear that until the bill was taxed there was nothing in respect of which execution could be granted, and that therefore the filing of the bill of costs was a condition precedent to execution and therefore a step in aid of execution.

The defendant's advocates were guilty of no delay, and in fact filed their bill of costs with commendable promptitude.

For the above reasons, I am of the opinion that the plaintiff's contention fails, and that limitation only runs from 23-8-30, the date of taxation.

I wish to make one further observation, and that is that the application for execution signed by the decree holder and his advocate contains a serious misstatement. It declares that the date of the decree was 23-8-30, whereas in fact it was 26-5-30. This is a piece of carelessness which even the most cursory reference to the decree itself would have disclosed.

There was in fact a distinctly arguable point on the question of limitation, whereas by the wrong date of decree being entered it would appear that no question of limitation could arise.

The application is granted for attachment in terms, but in view of the serious error in the application I disallow the Court fees in respect of the application, namely, Sh. 17.