[1937] EACA 201

### ORIGINAL CIVIL

#### BEFORE LANE, AG. J.

# ADAM NOORMOHAMED, Plaintiff

v.

## SIDI KHAMISA, Defendant

## C. C. No. 197/1930

Execution-Limitation-Indian Limitation Act, 1877, Sch. II Art. 179—Civil Procedure Ordinance, 1924, Sec. 35 (1).

The plaintiff obtained a decree against the defendant on 10-4-31: On 18-12-31 upon an application by him for the arrest and imprisonment of the judgment-debtor an order was made for payment of the decretal amount by instalments. No payment was ever made under this order. On 26-2-37 the plaintiff applied for the arrest and imprisonment of the judgment-debtor.

Held (25-3-37).—That by section 35 (1) of the Civil Procedure Ordinance, 1924, the period of limitation was 12 years from 18-12-31, the date of the order for payment by instalments, and not 3 years under Art. the Indian Limitation Act, 1877.

(De Souza v. Thika Cash Stores (14 K. L. R. 56) followed).

Hopley, for the plaintiff, referred to De Souza v. Thika Cash Stores (14 K. L. R. 56).

Amin, for the defendant, referred to Kanji Dharamsi and another v. Kanji Dharamsi & Co. (11 K. L. R. 46) and Coverdale & Stanley v. Saleh Mohammed (13 K. L. R. 43).

JUDGMENT.—The decree in this case is dated 10th April, 1931. The last step in execution was an order of this Court dated 18th December, 1931, for instalments of Sh. 50 per month, following upon an application for the judgment-debtor's arrest. No instalment or other payment has been made since; the only payment being that of Sh. 50 on 12th June, 1931.

For the judgment-debtor it is argued that the present application for the arrest and committal of the judgment-debtor is barred by limitation, since over 5 years have elapsed since that order.

The point is whether the period of limitation governing execution in this case is 3 years as provided by Article 179 (4) of the Indian Limitation Act, 1877, or 12 years as provided by Sec. 35 (1), Civil Procedure Ordinance, 1924: that is to say whether the judgmentcreditor is barred under Article 179 (4) of the Indian Limitation Act because he failed to make application for execution or to take any step in execution for over 3 years from the order of 18th December, 1931; or whether on the other hand he had a period of 12 years in which to make application under Sec. 35 (1), Civil Procedure Ordinance.

Sec. 35 (1), Civil Procedure Ordinance, 1924, corresponds to Sec. 230 of the Indian Civil Procedure Code which is referred to in Article 179 (4), Indian Limitation Act.

The guiding authority to which I have been referred is De Souza and Co. v. Thika Cash Stores (14 K. L. R. 46) where it was decided by a majority of the Eastern Africa Court of Appeal that "Sec. 230 of the Indian Civil Procedure Code is law of limitation which must be applied in a case where an application to execute a decree has been made and granted ... the period of limitation to be applied in this case is 12 years from 17th September, 1924 (the date of the last step in execution)".

In that case (which was a Kenya case) proceedings had begun before the present Civil Procedure Ordinance was in force and Sec. 230, Indian Civil Procedure Code, therefore applied.

Sec. 35 (1), Civil Procedure Ordinance, 1924, will apply in the present case.

The language of the judgment of the Appeal Court in Civil Appeal $31/1932$ is quite plain and the 12 years period of limitation must be held to apply. In any event there is the plain provision in Article 179, Indian Limitation Act, to this effect "For the execution of a decree or order of a Civil Court not provided for by ... Sec. 230 of the Code of Civil Procedure"; which means that the three year period of limitation enacted by the Article 179 (4), Indian Limitation Act, will only apply in cases not covered by Sec. 230, Indian Civil Procedure Code, or as here, by Sec. 35 (1), Civil Procedure Ordinance, 1924.

This present case is clearly covered by that section so that the twelve year period is the governing one, and the judgment-creditor has 12 years from 18th December, 1931, in which to make the application. He is therefore within time.

There is a difference between the provisions of Sec. 230, Indian Civil Procedure Code, and Sec. 35 (1), Civil Procedure Ordinance, 1924, in that under the former it was necessary for an application for execution to have been made and granted for it to count as a step in execution, whereas under the latter the application has only to be made and not necessarily be granted. This in no way weakens the<br>judgment-creditor's position; it rather strengthens it in the face of Mr. Amin's contention that the order of 18th December, 1931, ordering instalments did not amount to a "granting" of the application for arrest and imprisonment, and that it should not therefore count as a step in execution from which time can run. I find no substance in this argument in view of the terms of Sec. 35 (1), Civil Procedure Ordinance.