Stanley and Another v Mohamed (C.C. 86/1921.) [1931] EACA 11 (1 January 1931)

## ORIGINAL CIVIL.

## Before SIR JACOB BARTH, C. J.

COVERDALE & STANLEY (Plaintiffs)

## **SALEH** MOHAMED (Defendant). C. C. $86/1921$ .

Indian Limitation Act, 1877—Application for execution barred by Art. 179.

Held (29-7-31):—That section 230 of the Indian Code of Civil Procedure, 1882, is inapt, and that the application is barred by Article 179 of the Indian Limitation Act.

E. C. Harrison for judgment creditor.

Figgis, K. C., for judgment debtor.

$\mathcal{L}^{\mathcal{A}}(q,\mathcal{L}^{\mathcal{A}}(q))$

On 14th April, 1921, judgment was delivered in favour of the plaintiffs for a total sum of Fls. 3,666/75. Between the date of the judgment and the date of the present application (on which a notice to show cause issued on 5th February, 1931) various applications for execution against the person of the debtor were made but none was successful. The previous order on such application was made on the 18th May, 1923, and directed payment by certain instalments up to 1st December, 1923, when the judgment debtor's financial position would be reviewed. No further step was taken until the present application was filed on 4th February, 1931.

Figgis contended that Article 179 of the Limitation Act had already been held in this Court to apply, and that therefore the three years' period of limitation covered the present application. Quoted the order made in C. C. 202 of 1920, Anderson v. Thakur Dass and Another.

Harrison argued that Article 179 did not affect the provisions of section 230 of the Civil Procedure Code.

Figgis, in reply, submitted that section 230 of the Code only applies when an application has been made and granted. $\mathbf{H}\mathbf{e}$ submitted that in this particular case the judgment debtor had complied with the previous order herein for payment by instalments of Sh. 100 up to 1st December, 1923.

SIR JACOB BARTH, C. J., made the following order on the application.

ORDER.—In this case judgment was delivered on 14th April, 1921. There were various applications for commitment but none was granted. The last order of 18th May, 1923, being one for instalments.

It has been urged by the judgment debtor that the application for execution is now barred by the Indian Limitation Act, Article 179. In support of this an order of my own in Civil Case No. 202 of 1920, Anderson v. Thakur Dass and Another, has been cited.

It has also been pointed out that under section 230 of the Indian Code of Civil Procedure, 1882, which applied at the time of the proceedings and governs them, the limitation of twelve years provided by that section comes into operation in regard to subsequent applications when an application for execution has been made and granted.

It is clear that in this case no application for execution has been granted. For that reason alone section 230 is inapt. and in my judgment the present application is barred by Article 179 of the Indian Limitation Act and is dismissed with costs.