Execution-Date f.·om which limitation on execution runs

Limitation of Action-Execution-Dal£'. from which period of limitation begins
to run

The time within which a judgement holder must execute on the judge-
ment begins to run on the dale when the rights of the parties to the main
action were finally determined, and where judgement holders in 1926 ob-

• Court: Owen C.J. and Gorman

tained an ex parte decree by representing to a new judge that matters had
been finally determined on February 18, 1925. they cannot late in 1935 take
the position that the issues had not finally been determined until ) 926.

Prescription and Limitation Ordinance. 1928, s, 7.

Revision

December 4, 1935. Owen C.J.: This is an appeal from an
order of the judge of the High Court, dated October 16, 1935, dis-
missing an application by the judgement debtor that the execution of
the decree in C.S. 199-1924 be disallowed on the ground that the
right to apply for it has failed by lapse of time. The whole point
is whether time began to run from the date upon which the decree
was signed or from some anterior date. If it began to run on the
date when the decree was signed then the application for execution
was within the period prescribed by the Prescription and Limitation
Ordinance of 1928. If, on the other hand, it began to run from
the date upon which judgemeiifwas delivered the application is out of
time.

What happened was this: On February 18, 1925, the judge of the
High Court delivered a judgement declaring the rights inter se of the
parties to the case and making an order for an "account to be calcu-
lated." On June 16 of the same year an entry under the learned
judge's hand appears recording agreement as to details in the account,
no mention being made as to whether or not the parties were present.
From an examination of the file of the proceedings it then appears
that a further hearing was ordered for February 6, 1926, but' service of
the summons on the defendant (the' present applicant) was not made,
and only counsel for the plaintiffs (the re-spondents) appeared. There-
upon counsel for the plaintiffs applied that the record as it stood be
considered with a view of finally signing the decree "without the neces-
sity of further summoning the defendants." This application was re-
peated ex parte on March 2, 1926, but -there is no record of the
hearing or of the decision. On June 15, 1926, however, the successor
of the judge to whom the application was made, acting apparently
in the belief that the application had been assented to, formally signed
the decree in the absence of the defendants. This, in my opinion,
concluded the matter. The respondents obtained the judge's signature
to the decree in 1926, in the absence of the defendants, by represent-
ing that the issues had been finally determined on February 18 of
the previous year, and that there was therefore no need to summon
the defendants again. Whether that contention was right or wrong,