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Suratsing Chandanmal Oswal Vs. Gulabchand Lachmandas Pardesi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberA.F.A.A. No. 886 of 1960 with Second Appeal No. 887 of 1960
Judge
Reported inAIR1963Bom263; (1963)65BOMLR436; 1963MhLJ828
ActsCode of Civil Procedure (CPC), 1908 - Sections 11 and 152 - Order 20, Rule 7; Limitation Act, 1908 - Schedule - Articles 152, 182 and 182(2)
AppellantSuratsing Chandanmal Oswal
RespondentGulabchand Lachmandas Pardesi
Appellant AdvocateG.M. Joshi, Adv.
Respondent AdvocateR.W. Adik, Adv.
Excerpt:
.....whether an executable decree--period of limitation for application for execution of decree where appeal filed against decree--applicability of article 182.;under article 182 of the indian limitation act, 1908, it is only where an appeal against an executable decree has been filed that the period of limitation for the purpose of an application for execution of the decree would commence from the date of the decree of the court of appeal.;nagendra nath dey v. suresh chandra dey (1932) l.r. 59 i.a. 283 : s.c. 34 bom. l.r. 1065, referred to. - - this appeal was dismissed on 5th january, 1955, on the ground that since no executable decree was drawn up on account of the plaintiff hawing failed to pay the necessary court fee for the amount of mesne profits, that was ascertained by the court..........already drawn up and, therefore, the appeal should be treated as if it was an appeal against the decree drawn up on 9th of may 1957. i am afraid, however, that that contention can-not be taken into account, because the very preamble of the memo of appeal shows that it was an appeal only against the order dated 24th july 1953, and the order passed on the 22nd april 1957. there is, indeed, a reference in that preamble to the date 27th april 1957. but that date has a reference only to the application made by suratsingh praying that on his payment of the court-fees the decree in terms of the order passed on the 24th july 1953 be drawn up. as a matter of facts even the learned assistant judge in his judgment has referred to the appeal as having been filed only against these two orders and.....
Judgment:

1. On 13th April 1932, one Chandanmal Jasraj filed suit No. 472 of 1932 for possession of an immoveable property and for past and future mesne profits. The suit resulted in a decree, which was passed on 9th September 1933. The defendant filed an appeal against that decree, but that appeal was dismissed on 27th November 1935, as having abated on account of the heirs of the plaintiff, who had died in the meantime, not having been brought on record. The defendant thereafter filed an application for review of the order dismissing the appeal but that application was also dismissed on 8th June 1936. In execution of the decree, Suratsing, the adopted son of the deceased plaintiff Chandanmal, recovered possession of the property on 13th March 1949. A few days thereafter, i. e. on 8th April 1949, he made an application to the trial Court for ascertainment of the insane profits from 13th April 1932, i. e. the day on which the suit was filed till 13th March 1949, when possession of the property in question was recovered by him. It appears that in this application Suratsingh had omitted to mention the fact that the defendant had filed an appeal against the decree in the suit. Suratsingh accordingly filed an application on 18th January 1951 for amendment of the aforesaid application so as to incorporate the date of the dismissal of the appeal by the defendant. Somehow or the other, however, the amendment of the application, which was granted on 3rd February 1951, was not properly carried out. In other words, apart from other things, the date 13th April 1932, which had appeared in the application was scored out and instead the date 27th November 1935 was, substituted in its place. This amendment does not seem to have been noticed by Suratsingh for about two years. On nth February, 1953, after he came to know of the errors in the amendments made in the main application, Suratsingh filed another application for amending the main application so as to indicate that the mesne profits that were prayed for were from 13th April, 1932, on which date the suit for possession was filed and for a period of three years subsequent to the final disposal of the appeal by the District Court; This application was granted by the Court. But it appears that no further amendment of the main application was carried out in pursuance of the order. On 24th July, 1953, the application for ascertainment of mesne profits was heard by the Court and by an order made on that day, the mesne profits were fixed for a period of three years at the rate of Rs. 25/- per month from 27th November, 1935, to 27th November, 1938. (It may be remembered that it was on 27th November, 1935, that the appeal, which was filed by the defendant against the decree, was dismissed by the Court). The order further directed that the decree in terms thereof shall be drawn up on Suratsingh paying the necessary Court fees in respect of the amount awarded to him as mesne profits. Being aggrieved by this order, it appears, Suratsingh filed an application, Exhibit 63-A, on the game day praying that the order be reviewed and it may be corrected so as to allow mesne profits also from the date of the suit, i. e., 13th April, 1932. Sometime after this application was filed, Suratsingh also filed an appeal against the order dated 24th July, 1953, being appeal No. 406 of 1953, in the District Court. This appeal was dismissed on 5th January, 1955, on the ground that since no executable decree was drawn up on account of the plaintiff hawing failed to pay the necessary Court fee for the amount of mesne profits, that was ascertained by the Court by its order dated 24th July, 1953, and the appeal was not from such decree, the appeal was not maintainable. The application, Exhibit 63-A, on the other hand was also dismissed on 22nd April, 1957. The reason for dismissing this application as given by the learned joint Civil Judge, Junior Division Ahmednagar, was that it was Suratsingh himself, who had failed to carry out the amendment in the main application in pursuance of the order passed by the Court on his application dated nth February, 1953; and that, therefore, there was no error on the face of the record, which called for any correction in the order passed by the Court, under Section 152 of the Civil Procedure Code. On 27th April, 1957, Suratsingh filed an application, Exhibit 94, praying that the decree in terms of the order passed on 24th July, 1953, be drawn up on the acceptance of the Court-fees from him, which he offered to pay. The Court-fees were allowed to be paid and the decree was formally drawn up on 9th May, 1957. Suratsingh then filed Drakhast No. 3 of 1957 on 16th September, 1957, for execution of the decree. But that Darkhast was disposed of on 25th July, 1958. The present Darkhast was thereafter filed on 6th August, 1958; for the recovery of the amount of mesne profits awarded by the decree by attachment of the property belonging to the defendant. The defendant in this Darkhast contended that it was barred by time, since although, the formal decree was drawn up on 9th May 1957 in law it was deemed to have been passed on and bore the date the 24th July, 1953, when the amount of mesne profits was ascertained and the defendant was ordered to pay the same; and the Darkhast was filed more than, three years after the date of the decree. To save limitation for this application, Suratsingh relied upon the appeal, which he had filed, being Appeal No. 406 of 1953 to the District Court against the order dated 24th July 1953, which had fixed the mesne profits at Rs. 775. He also relied upon Drakhast No. 3 of 1957, which was disposed of on the 25th July 1958. The Executing Court held that the application was not barred by time, since Suratsingh was entitled to the deduction of time taken up by the aforesaid appeal and also by the said Darkhast. That Court accordingly ordered issue of a Jangam Warrant against the defendant. Against this order the defendant went in appeal to the District Court. The learned Assistant Judge, who heard this appeal, reversed the order of the Executing Court and held that the application for. execution filed on the 6th August 1958 was barred by time, since it was manifestly made more, than three years from 24th July 1953, on which date the decree for mesne profits though drawn up on 9th May 1957 was actually passed. The learned Judge did not allow to Suratsingh the period of time taken up in the prosecution of appeal No. 406 of 1953 in the District Court since it was not an appeal against an executable decree. The learned Judge does not seem to have referred in his judgment to the prior Darkhast No. 3 of 1957, which was filed- on the 16th September 1957, after the decree was drawn up on 9th May 1957. But that seems to be immaterial because, if the time taken up in the prosecution of the appeal as aforesaid could not he excluded from the period of limitation of three years from the 24th July 1953, the fact that Darkhast No. 3 of 1957 was filed on the 24th September 1957, which also was presented more than 4 years after the aforesaid date, could not make any difference. It is against this order allowing the defendant's appeal and dismissing the Darkhast that Second Appeal No. 887 of 1960 is filed by Suratsingh in this Court.

2. Before this appeal, however, another appeal was filed by Suratsingh in the District Court on 29th June 1957 against the order of the trial Court fixing the amount of mesne profits, dated 24th July 1953 and also against the order dated 22nd April 1957, dismissing his application, Exhibit 63A, for review of that order. As already stated, the application, Exhibit 63A, was dismissed by the trial Court on the ground that it was Suratsing's own mistake that he had not taken care to amend the main application praying for ascertainment of mesne profits, although his application for amendment thereof was granted by the Court On 11th February 1953. Before the learned Judge, who heard the appeal, it was conceded by the learned Advocate for Suratsingh that no appeal could lie against the order dated 22nd April 1957, by which the application, Exhibit 63A, for review of the order dated 24th July 1953 was dismissed and accordingly, he did not question the validity of that order. The only question, therefore, that the learned Judge had to determine was as to whether, there, was any substance in the appeal against the order dated 24th July 1953, by which the amount of mesne profits was ascertained and awarded. To this appeal, however, the defendant raised a preliminary objection stating that the appeal was barred by time, since it was filed on the 29th June 1957, more than three years after the date of that order. This contention Was upheld by the learned Assistant Judge and the appeal was dismissed with costs. It is against this order of the learned Assistant Judge that Suratsingh has filed Second Appeal No. 886 of 1960 in this Court.

3. Taking up the latter appeal first, it was urged by Mr. Joshi in support thereof that the appeal could not be said to have been barred by time on account of the fact that the truly effective decree was passed on 9th May 1957 and the appeal was filed on 29th June 1957, almost within two months from that date. Mr. Adik, the learned Advocate for the defendant, on the other hand, contended that Suratsingh could not take advantage of his own default and claim exemption for the period between 24th July 1953, when the order fixing the amount of mesne profits was passed, and 9th May 1957, when the decree in terms of the order was drawn up, since it was he himself, who had delayed payment of the Court fees, on which alone a formal decree for the mesne profits was directed to be drawn up by the Court. It appears to me that Suratsingh himself created a lot of confusion in this case. As already stated, he had filed an appeal (No. 406 of 1953) against the order dated 24th July 1953, in the District Court, and that appeal was already dismissed on 5th January 1955. In view of that proceeding, I wonder, how he could have filed another appeal against the same order. As already observed, the earlier appeal was dismissed inasmuch as it was found to be mis-conceived, because there was no executable decree at the date of filing of the appeal against which an appeal could be filed. Irrespective of whether that decision was right or wrong in Law, in my opinion, the appeal subsequently filed by Suratsingh against the same order on 29th June 1957, must be held to be barred by res indicate and really speaking, it was not necessary for the disposal of that appeal to decide as to whether it was barred by limitation or not.

4. It was then urged by Mr. Joshi that on the date on which the appeal was filed, the decree was already drawn up and, therefore, the appeal should be treated as if it was an appeal against the decree drawn up on 9th of May 1957. I am afraid, however, that that contention can-not be taken into account, because the very preamble of the memo of appeal shows that it was an appeal only against the order dated 24th July 1953, and the order passed on the 22nd April 1957. There is, indeed, a reference in that preamble to the date 27th April 1957. But that date has a reference only to the application made by Suratsingh praying that on his payment of the Court-fees the decree in terms of the order passed on the 24th July 1953 be drawn up. As a matter of facts even the learned Assistant judge in his judgment has referred to the appeal as having been filed only against these two orders and the learned Advocate for Suratsingh himself also does not- seem to have contended before the learned Judge that it was an appeal against the decree drawn up on 9th May, 1957.

5. Assuming, however, that the appeal could be said to have been filed against the decree drawn up on 9th May, 1957, it could not be said to be one within time, since under Order 20, Rule 7 of the Civil Procedure Code the decree that was so drawn up related back to and bore the date 24th July 1953, on which date the order fixed the amount of mesne profits passed and the defendant was directed to pay that amount and the period of limitation for an appeal against that decree would commence from such date. In my opinion, therefore, the appeal, as already stated, was barred by res judicata on account of the decision in appeal No. 406 of 1953 against the same order, and further it was also barred by limitation, since it was filed about as much as four years after the date of the decree, In the result, there is no substance in Appeal No. 886 of 1960 and the same is dismissed with costs.

6. Turning to the Second Appeal No. 887 of 1960, it has already been stated that the Darkhast from which this appeal arises, was held to be in time by the Executing Court, but in appeal it was held to be barred by time and was accordingly dismissed by the District Court. In this appeal, it was urged by Mr. Joshi that the effective decree, which was capable of execution, was drawn up and came into existence on 9th May 1957 and that, therefore, the Darkhast was in time. It was alternatively contended that even if the decree so drawn up was to be deemed to have been passed on 24th July 1953, on which date the order fixing the amount of mesne profits was passed, the application for execution was evade from the bar of limitation by the appeal, which his client had filed in the District Court against the order dated 24th July 1953, being Appeal No. 406 of 1953. The trial Court, as already stated, accepted this contention and allowed the execution to proceed. The learned Assistant Judge however, took a different view of the matter relying upon certain decisions of the Patna High Court and held that the application was barred by time. Mr. Adik, the learned Advocate for the defendant, contended that the period of time taken up in the prosecution of the appeal No. 406 of rg53 could not be deducted while computing the period of limitation for the Darkhast, since the appeal contemplated by Article 182 of the Limitation Act was one against an executable decree and Appeal No. 406 of 1953 was only against the order of the Court fixing the amount of the mesne profits and no executable decree in terms of that order was drawn up before that appeal was filed. In my opinion, this contention deserves to be accepted.

It may be noted that the Court, while passing the order fixing the mesne profits on 24th July 1953, bad left it to the applicant Suratsingh to pay the necessary Court fee in respect of the amount awarded to him as and by way of mesne profits and to get a decree drawn up, so that he could execute that decree and recover the amount from the defendant. If the applicant instead of paying the Court fees filed an appeal against that order, which, it may be noted, was not an order passed in execution of a decree, such appeal, in my opinion, does not fall within the purview of Article 182 of the Limitation Act. That Article provides that the period of limitation for an application for execution of a decree shall start from the date of the decree, and in case an appeal has . been filed from that decree, from the date of the final decree of the Court of Appeal in that appeal. The very terms of the Article indicate that the decree contemplated therein is an executable decree; if it were otherwise, the Article would not say that in the first instance the period of limitation will begin to run from the date of the decree. Consequently, when that Article refers to the final decree of the Court of Appeal, in an appeal filed from that decree, such decree would also mean an executable decree. Thus, it is only where an appeal against an executable decree has been filed that the period of limitation for the purpose of an application for execution of the decree would commence from the date of the decree of the Court of Appeal. In the present case, an appeal against the order dated 24th July 1953 was not an appeal against an executable decree, because the applicant had not paid the necessary Court fees on that day nor was any decree in terms of the order drawn up on that day. The decree, as already stated, was drawn up so late as on 9th of May 1957, more than two years after the dismissal of that appeal. Accordingly, in my judgment, the applicant would not be entitled to claim exemption for the period taken up by his appeal against the order dated 24th July, 1953. In that event, that present application for execution of the decree filed on 9th August 1958 would he clearly barred by time.

7. It was next urged by Mr. Joshi that according to the observations of the Privy Council in Narendra Nath v. Suresh Chandra Article 182 of the Limitation Act would apply even in cases where an appeal was irregular or incompetent and that, therefore, although no appeal could lie against the order dated 24th July 1953, the time taken up for the prosecution of that appeal should be allowed to the applicant. I am afraid, this argument cannot be accepted. The facts in that case were that an application purporting to be an appeal was filed by an assignee of a mortgage against the 'order' of the subordinate Judge of June 24, 1920, by which his claim to the assignment was disallowed while passing a final decree for sale of the mortgaged properties. The decree was drawn up on August 2, 1920, but properly dated June 24, and the aforesaid application was presented to the High Court on August 27, 1920. The High Court found that the application, purporting to be an appeal was irregular in form as not being an appeal against the decree of the Subordinate Judge and also being insufficiently, stamped, for the purpose and it was eventually dismissed both on the ground of irregularity and upon the merits on August 24, 1922. On October 3, 1923, the decree-holders presented, an application to the Subordinate Judge for execution of the decree by sale of the mortgaged properties. The judgment-debtors, however, opposed it on the ground that it was barred by Article 182 of the Limitation Act. Their Lordships of the Privy Council had, therefore, to consider the effect of the assignee's appeal for the purpose of their decision on the question as to whether the decree-holder's application was barred by Article 182 of the Limitation Act, and they held that there was no force in the contention that the assignees' appeal was by reason of its irregularity as pointed out by the High Court was not an appeal at all. It was in this connection that their Lordships observed that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a Subordinate Court, was an appeal within the ordinary acceptance of the term, and that it was no less an appeal because it was irregular or incompetent. In view of the fact, however, that the decree was drawn up before the appeal by the assignee was filed in the High Court, the Judicial Committee while interpreting Article 182 held that in the case before them there was an appeal from the mortgage decree of June 24, 1920, that the time only ran against the decree-holders who were respondents in that appeal from August 24, 1922, the date, of the Appellate Court's decree, and that, therefore, the application for execution was not barred by time. Thus, it will be clear that the assignee's appeal in that case was regarded as an appeal against the mortgage decree for sale of immoveable properties, which, indeed, was an executable decree, and the decree-holders were held entitled to avail of the time taken up for the disposal of that appeal for bringing their application for execution within the period prescribed by Article 182 of the Limitation Act.

8. In the present case, however, as already observed, there was no executable decree passed by the order dated 24th July 1953 nor was any decree drawn up in terms of that order prior to the presentation of the appeal to the District Court. All that the Court had done by the order passed on that day was that the applicant had to pay the necessary Court fees for the amount fixed as mesne profits and had to get a formal decree drawn up in his favour. In my opinion, therefore, the observations relied upon by Mr. Joshi do not lend any support to his arguments.

9. Accordingly, I agree with the decision of the learned Assistant Judge that the application for execution dated 6th August, 1938, was barred by time. In the result, this Second Appeal also fails and is dismissed with, costs.

10. Appeal dismissed.


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