Kanji v Bhanji (C.C. No. 50/1931) [1937] EACA 200 (1 January 1937)

## ORIGINAL CIVIL

BEFORE LUCIE-SMITH, AG. C. J.

## JAMNADAS KANJI, Plaintiff

v.

## HARILAL BHANJI, Defendant

## C. C. No. 50/1931

Limitation—Execution of decree—Step in execution— Taxation of costs-Indian Limitation Act, 1877, Sch. II, Art. 179.

On 20-2-32 the plaintiff obtained a decree on an $ex$ parte judgment against the defendant for debt and costs; on 13-9-37 he applied for execution by attachment of the defendant's salary. There had been no previous step taken in execution of the decree save that on $24-11-34$ the plaintiff had taxed his costs.

Held $(21-9-37)$ .—That the application to tax and the taxing of a bill of costs is not in itself an application in aid of execution, and that therefore the<br>plaintiff's application was barred by limitation.

Fathili v. Hasham Kara (15 K. L. R. 37) distinguished.

Archer for the plaintiff.

Figgis, K. C., for the defendant.

JUDGMENT.—This is an application for execution of a decree by attachment of salary under section 44 of the Civil Procedure Ordinance and O. 19, r. 45 of the Civil Procedure Rules.

The decree is dated 20-2-32 and the application for execution 13-7-37.

Mr. Figgis contends that the application is barred by the Indian Limitation Act which allows a judgment-creditor a period of three years in which to take some step in aid of execution of a decree or order. Mr. Archer replies that the taxation of his bill of costs on 24-11-34 was a step in aid and in his support quotes a judgment of Gamble Ag. J. in Fathili v. Hasham Kara (15 K. L. R. 37). In his judgment the learned Judge says: "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, when judgment was for costs only". From the latter part of the last sentence it would appear that the learned Judge was influenced by the peculiar facts of that case. It has been suggested that the bill of costs in this case was taxed for the purpose of obtaining execution—there is nothing on the record to support this and the fact remains that though the bill was taxed ex parts on $24-11-34$ this application was not made until nearly three years later.

In my opinion the mere application to tax and the taxing of a bill of costs is not of itself an application in aid of execution.

Mr. Archer has further submitted that the Indian Limitation Act is ousted by the Limitation Ordinance of 1934 and refers to section 3 of the Ordinance. To my mind Part 1 of the Ordinance relates to suits and not to execution of decrees.

Paraphrasing the words of Cunningham J. in Rajkumar Banerji v. Rajlakhi Dobi (12 Cal. 441) I think that the judgment-creditor has failed to show that there has been an application in aid of execution between the making of the decree and the present application which would prevent the period of limitation from expiring.

The application is dismissed with costs.