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Mahadeo Bhimashankar Madhave Vs. Fatumiya Husseinbhai - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai
Decided On
Case NumberSecond Appeal No. 320 of 1941
Judge
Reported inAIR1948Bom337; (1948)50BOMLR221
AppellantMahadeo Bhimashankar Madhave
RespondentFatumiya Husseinbhai
DispositionAppeal dismissed
Excerpt:
indian limitation act (ix of 1908), article 182(2) - execution of decree-preliminary decree-appeal whether word 'appeal' includes appeal from preliminary decree.;the word ' appeal ' in article 182(2) of the indian limitation act, 1908, means an appeal from the decree sought to be executed, and not an appeal from a preliminary decree.;the plaintiff obtained a preliminary mortgage decree on june 27, 1933. the defendant, preferred an appeal from that decree and the appellate court made an order on november 16, 1935, declaring the appeal to have abated. the preliminary decree was made final on march 7, 1935, on march 30,1935, the plaintiff filed a darkhast to execute the final decree and it was disposed of on september 14, 1935. on november 16, 1938, the assignees of the decree filed another.....dixit, j.1. this second appeal raises a question of law which is whether the appellants' darkhast is barred by limitation, and the facts necessary to understand the question are these.2. in a suit to enforce a mortgage one pandurang bhikaji shete obtained a preliminary mortgage decree on june 27, 1938. from that decree the defendant preferred an appeal and the appellate court made on november 16, 1935, an order declaring the appeal to have abated since the judgment-debtor's heirs had not been brought upon the record, he having died after the filing of the appeal. prior to that, the preliminary decree was made final on march 7, 1935. on march 30, 1935, the decree-holder applied by darkhast no. 618 of 1935 to execute the final decree, and on september 14, 1985, that darkhast was disposed.....
Judgment:

Dixit, J.

1. This second appeal raises a question of law which is whether the appellants' darkhast is barred by limitation, and the facts necessary to understand the question are these.

2. In a suit to enforce a mortgage one Pandurang Bhikaji Shete obtained a preliminary mortgage decree on June 27, 1938. From that decree the defendant preferred an appeal and the appellate Court made on November 16, 1935, an order declaring the appeal to have abated since the judgment-debtor's heirs had not been brought upon the record, he having died after the filing of the appeal. Prior to that, the preliminary decree was made final on March 7, 1935. On March 30, 1935, the decree-holder applied by darkhast No. 618 of 1935 to execute the final decree, and on September 14, 1985, that darkhast was disposed of. In 1936 the decree-holder's sons, acting through their mother as guardian, assigned the decree to one Balvant, who is the uncle of appellants Nos. 1 and 2 and the husband of appellant No. 3. Balvant himself died on June 25, 1938, and the three appellants filed the present darkhast No. 15 of 1938 on November 16,1938, claiming execution of the decree. The judgment-debtor's heirs raised a plea that the darkhast was barred by limitation.

3. The executing Court held that inasmuch as the present darkhast was not filed within three years from the disposal of the previous darkhast, the same had become barred by reason of the limitation period having run out. Consequently, the darkhast was dismissed with costs. The assignees preferred in the District Court, Poona, an appeal against the order of the executing Court, and the learned District Judge, agreeing with the view of the executing Court, dismissed the appeal and confirmed the lower Court's order. The reasons given were: (1) that the word 'Appeal' in art, 182, Clause (2), of the Indian Limitation Act, means appeal from the decree or order sought to be executed, (2) that the preliminary decree from which appeal No. 308 of 1933 was filed by the judgment-debtor was incapable of execution, (3) that there was no appeal from the final decree and hence Article 182, Clause (2), can have no application, and (4) that as in the present case there has been no appeal from the final decree, which is the decree sought to be executed, time should be computed from the date of the final decree and not from the date on which the appeal from the preliminary decree was declared to have abated. The assignees appeal.

4. When this appeal first came up for hearing before Mr. Justice Macklin on February 18, 1947, he directed the appeal to be heard by a bench, since he took the view that he ought not to decide the point arising in the appeal sitting alone in view of the conflict of authority in the Madras High Court and also in view of certain observations made by the Privy Council in Nagendra Nath Bey v. Suresh Chandra Dey 34 Bom. L.R. 1065.

5. Upon this appeal it is now contended that the present darkhast is not barred by limitation. The answer to this question depends upon the proper construction of Clause (2) of Article 182 of the Act. In order to understand the question properly, it is, I think, necessary to set out so much of the article as has a bearing upon the question.

Article 182, Clause (2)

For the execution of a decree or order | Three years; | (2)(Where there has been an appeal)

of any civil Court | | the date of the final decree or

| | order of the Appellate Court, or

| | the withdrawal of the appeal.

In order to understand Clause (2) properly, it may not be out of place to set out Clause (1) which is 'The date of the decree or order' and Clause (4) which is, (where the decree has been amended) the date of amendment.

6. In the present case the contention is that the present darkhast which was filed on November 16, 1938, is in time from November 16, 1935, which is the date on which the Court declared the appeal from the preliminary decree to have abated. It is obvious that if limitation commences to run from the disposal of the previous darkhast which was on September 14, 1935, the present application for execution is out of time. Article 182 by column 3 prescribes various starting points of limitation, the first of which is 'the date of the decree.' Clause (1) is, I think, subject to Clause (2), as also Clause (4). The learned advocate for the judgment-debtor contends that Clause (5) is also subject to Clause (2), but I think that submission is clearly wrong. If Clauses (2) and (5) are read together, it is apparent that different periods of limitation have been prescribed on the happening of different events contemplated by Clauses (2) and (5). That is only by the way. If column 1 and Clause (2) occurring in column 8 of Article 182 are read together, it is, I think, plain that the expression 'Appeal' occurring in Clause (2) must mean an appeal from the decree sought to be executed, and it cannot mean an appeal from a preliminary decree, because a preliminary decree is not capable of execution.

7. But upon this point there are apparently conflicting views. One view is that the word 'Appeal' in Article 182, Clause (2), means appeal from the decree or order sought to be executed. This view is illustrated in cases such as Ahmmad Kutty v. Pottekkat Kuttu (I.L.R. 1932) Mad. 458 Jivaji v. Ramchandra I.L.R(1891) . 16 Bom. 123 and Jacinto v. Fernandez. : AIR1939Bom454 . The other view is that the word 'Appeal' in Clause (2) of Article 182 means 'an appeal in the suit which is likely to affect the decree sought to be executed' and not merely an appeal against the actual decree or order sought to be executed. This view is illustrated in the case of Sriramachandra v. Venkateswara [1939] Med. 252 and also to a certain extent in a decision of this Court in Nagappa Bandappa v. Gurushantappa Shankrappa 35 Bom. L.R. 432.

8. If limitation commences to run from March 7,1935, the present darkhast is clearly out of time. But if limitation commences to run from November 16, 1935, the present darkhast is quite clearly in time. There is a good deal of authority for holding that in a case like the present, limitation will commence to run from November 16, 1935. That authority will be found in Veeran v. Koya [1939] Mad. 828 which accepts a decision of the same Court to which I have already alluded. That view also found favour in a Patna case in Somar Singh v. Deonandan Prasad Singh I.L.R.(1927) Pat. 780 . If the view propounded in Veeran v. Koya is right, then there is no difficulty in holding that the present darkhast is in time, and the question which arises for decision in this appeal is whether that view is right. It may be mentioned that in the Madras High Court there has been another decision reported in Ahmmad Kutty v. Kottekkat Kuttu which is in a sense contrary to the decision in Veeran v. Koya. It may be observed that the case in Ahmmad Kutty v. Kottekkat Kuttu was decided before the decision of their Lordships of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey and it is really by a proper understanding of the decision in this case that the point arising in the present appeal has got to be determined. I only need say for the moment that Nagendra Nath's case was followed in this Court in Nagappa Bandappa v.Gurushantappa Shankrappa to which I will refer in a moment.

9. Returning to Nagendra Natt's case, the facts in that case were these. On June 10, 1913, there was a preliminary decree in supersession of the decree of the Subordinate Judge, which was a decree in terms of compromise. On June4, 1916, Madan Mohan, who was an assignee, applied for a final mortgage decree. He prayed by an application that an order to that effect should be made in his favour. On June 24, 1920, the Subordinate Judge delivered his judgment disallowing Madan Mohan's claim, and a final decree was passed for the sale of the mortgaged properties. The decree was drawn up on August 2, 1920, but properly dated as of June 24. The decree contained a declaration, in conformity with the judgment, that the appellants were entitled to payment of Rs, 14)615-15-3 out of the proceeds of the sale of the properties. On August 27,1920, Madan Mohan presented an application to the High Court purporting to be an appeal from the 'order' of the Subordinate Judge of June 24, 1920, and alleging, what was clearly untrue, that no decree had been drawn up. That appeal of his was dismissed by the High Court on August 24,1922. On October 3,1923, the appellants presented an application for execution by sale of the mortgaged properties. But respondents Nos. 1 to 4 objected to the execution on the ground that the application was barred by Article 182. Their Lordships of the Privy Council had to consider the question as to whether limitation commenced to run from June 24,1920, which was the date of the decree, or whether limitation commenced to run from August 24,1922, which was the date of the appellate decree. In that case the Subordinate Judge held that the application for execution was in time, but the High Court took the opposite view, and it was in those circumstances that their Lordships of the Privy Council were called upon to determine the question.

10. Before their Lordships of the Privy Council the dismissal was supported upon three grounds, two of which need be mentioned in this place, which were : (2) that an appeal in order to save limitation under Clause (2) of the article must be one to which the persons affected, i.e. in the present case the judgment-debtors, were parties; and (3) that it must also be one in which the whole decree was imperilled. In reference to these two grounds this is what their Lordships observed (p. 288):

Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the article : 'where there has been an appeal', time is to TUB from the date of the decree of the Appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable Considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is, so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court. But whether there be or be-not a theoretical justification for the provision in question, their Lordships think that the words of the Article are plain, and that there having been in the present case an appeal from, the mortgage decree of June 24, 1920, time only ran against the appellants from August 24,1922, the date of the Appellate Court's decree.

It may be noted that the appeal which was filed before the High Court was an appeal against the final decree dated June 24, 1920., The objection taken on behalf of the judgment-debtors was that inasmuch as they were not parties to the appeal and as the whole of the decree was not imperiled, the appeal before the High Court was not a good appeal within the meaning of Article 182, Clause (2), of the Indian Limitation Act. It must again be observed that their Lordships were not specifically dealing with the question which arises for determination in this case. But although that was the situation, the remarks of their Lordships of the Privy Council at p. 288, which I have quoted above, are strongly relied upon in support of this appeal.

11. Now, it is obvious that if the actual decision is looked at, Nagendra Nath's case does not certainly assist the appellants, but it is claimed for them that the observations do support their contention and that inasmuch as there was an appeal against the preliminary decree and as the appeal was disposed of on November 16, 1935, the present darkhast filed on November 16, 1938, is well within time. I think nobody will dispute the principle that a case is an authority for what it actually decides and certainly not an authority for what logically follows therefrom. But as we have to bear in mind the observations of their Lordships of the Privy Council in Nagendra Nath's case, it is necessary to closely examine the arguments both for and against the present contention.

12. The argument in support of the present contention was noticed by Mr. Justice Patkar in Nagappa Bandappa v. Gurushantappa Shankrappa. In that case the facts were these. Under a decree dated December 14, 1925, R and S became entitled to recover Rs. 42,940-5-9 from G. On April 6, 1926, S preferred an appeal against the decree. Meanwhile, on March 6, 1926, G had applied for a review of the decree. On July 15, 1926, the review application was allowed, the amount under the decree being reduced to Rs. 27,940. R and S then preferred an appeal (No. 65 of 1926) against the order, granting the review, but they presented no appeal against the decree of July 15,1926. On October 29, 1928, both the appeals were dismissed as incompetent. On August 6, 1929, R and S assigned their rights under the decree to N who applied on September 2, 1929, for transfer of the decree to the First Class Subordinate Judge's Court at Sholapur for execution when G contended that the application was barred by limitation, not having been filed within three years from July 15, 1926. The lower Court upheld the contention, and on appeal by N, it was held that the application for execution of the decree was in time as time began to run from October 29, 1928, the date of the appellate decree and not from July 15, 1926.

13. The reasons given by the learned Subordinate Judge in support of his order have been set forth at page 391, one of which was that the appeal before the High Court was not from the decree sought to be executed. A perusal of the judgment shows that the Court did not apparently examine the correctness of that reason. It will be seen that the decision was mainly based upon the consideration which was given to reasons Nos. (2) and (3), which were (2) that the appeal was not competent for the reasons given in the judgment of the High Court, and (3) that the appeal was disposed of on a preliminary objection raised by the respondent and was not heard and decided on the merits and there was no real adjudication on the merits. Mr. Justice Patkar after referring to Nagendra Nath's case held that having regard to the Privy Council decision, the view taken by the lower Court was erroneous.

14. It is to be noted that two appeals had been preferred in the High Court (1) against the decree dated December 14, 1925, and (2) against the order granting the review, and both these appeals were dismissed as incompetent. There was an appeal (No. 65 of 1926) against the decree of December 14,1925, and it was disposed of on October 29, 1928. It is obvious that the Court rightly held that limitation commenced to run from the date of the appellate decree which was October 29, 1928. If that was the ground, it is fairly plain that the case fell within Article 182, Clause (2), of the Indian Limitation Act. The principle which was laid down by their Lordships and which was accepted by this Court was that in so far as there was an appeal which was heard and decided on October 29, 1928, the fact that the appeal was incompetent did not render its efficacy as of no assistance for Clause (2) of Article 182 of the Indian Limitation Act. As I have already stated a little while ago, the Court did not apparently examine the correctness of the first of the three reasons summarised at page 391 of the report.

15. In Jivaji v. Ramchandra I.L.R.Q(1891) 16 Bom. 123 the facts were these. The plaintiff obtained an ex parte decree against the defendant on March 10, 1886. The defendant applied to have the decree set aside. His application was finally rejected by the appellate Court on March 5, 1887. The decree-holder presented a darkhast for execution of the decree on September 24, 1889. It was objected that the darkhast was time-barred. The lower Courts upheld that objection and on appeal to this Court it was held that the darkhast was time-barred under art, 179 ,Clause (2), of the Limitation Act (XV of 1877), and that the appeal referred to in that clause is clearly an appeal from the decree or order sought to be executed, and not an appeal from an order of the Court refusing to set it aside. If this is good law, there is no difficulty in rejecting the contention raised on behalf of the appellants in the present appeal. The view taken in Jivaji's case seems to be in accord with the observations of this Court in Jacinto v. Fernandez : AIR1939Bom454 .

16. In the latter case the facts were these. The plaintiff in that suit obtained a partition decree in relation to house property and lands. On April 2, 1930, the Court made a final decree in respect of the house property. From that decree there was an appeal which was disposed of on January 16, 1931. The darkhast giving rise to the appeal was filed on January 9, 1934, that is within three years of the disposal of the appeal but much more than three years from the date of the decree for partition made on May 27, 1925. It was in reference to these facts that it was held that the words 'where there has been an appeal' in the last column of Article 182 of the Indian Limitation Act, 1908, mean an appeal from the decree sought to be executed and not an appeal from another decree, though made in the suit.

17. I now refer to the two decisions cited in the interlocutory judgment of Mr. Justice Macklin. In Ahmmad Kutti v. Kottekkat Kuttu I.L.R.(1932) Mad. 458 the principle stated is as follows : 'Appeal' in Article 182(2) of Schedule I of the Indian Limitation Act is appeal from the decree or order sought to be executed. Where, during the pendency of an appeal from the preliminary decree in a partition suit, the trial Court passes a final decree in the suit and that decree is not appealed from, limitation for execution of the final decree runs from the date thereof and not from the date of the decree of the appellate Court in the appeal from the preliminary decree. The final decree will no doubt have to be altered in the event of the appeal from the preliminary decree succeeding; but nothing stands in the way of the party concerned in applying for the passing of a fresh final decree in accordance with the appellate decree. A decree which has already become barred by limitation cannot be revived for purposes of execution by a subsequent amendment. Hence Article 182 (4) is inapplicable to a case where the decree had, prior to the date of its amendment, become barred by limitation. It may be noted that this case was decided prior to the decision of their Lordships of the Privy Council in Nagendra Nath Dey's case. But this case illustrates one of the two views which I have set forth at the commencement of my judgment.

18. The other Madras case is reported in Sri ramachandra v. Venkateswara.[1939] Mad. 252. In that case the facts were these. There an ex parte decree was obtained on March 5, 1980. An application to set aside the ex parte decree was dismissed by the Subordinate Judge, and defendants Nos. 1 and 3 to 5 in the suit preferred in the High Court an appeal from the order of dismissal. On October 20, 1932, the High Court gave judgment allowing the appeal and extending its benefits to defendants Nos. 2, 6 and 7 on condition that they deposited the decree amount within three months. That deposit was not, however, made, and so as against defendants Nos. 2, 6 and 7 the ex parte decree stood confirmed as from October 20, 1932. On August 15, 1935, the decree-holder filed an application to execute the decree against defendants Nos. 2, 6 and 7, and it was held upon those facts that the period of three years prescribed by Article 182 of the Indian Limitation Act ran from October 20, 1932, the date of the appellate decree of the High Court, and not from March 5, 1930, the date of the ex parte decree, and that the application of August 15,1935, was not barred by limitation. With reference to the expression 'Appeal' in column 3 of Article 182, it was observed that the expression 'Appeal' means 'an appeal in the suit which is likely to affect the decree sought to be executed' and not merely an appeal against the actual decree or order sought to be executed. This case, therefore, sets forth the second of the two views which I have mentioned at the commencement of my judgment. It may be noted that this case was decided after the decision of their Lordships of the Privy Council in Nagendra Nath's case. It will appear from p. 255 of the report that the Madras High Court did not accept the principle laid down in Fakir Chand Mandal v. Daiba Charan Parni I.L.R.(1927) Cal 1052 . With reference to that case the Court said as follows:

With all respect to the learned Judges in Fakir Chand Mandal v. Daiba Charan Parni I.L.R.(1927) Cal 1052 we are unable to see how the narrower view which they upheld is 'clear upon principle.' The only principle we can discover in the rulings cited for the respondents is that the words 'where there has been an appeal ' must be taken in their context, that is to say, with reference to the words in column I of art 182. But it does not necessarily follow that because a decree or order is mentioned in column I, the appeal which is mentioned in column III must be against that decree or order. It is equally logical to say that it must be something which affects that decree or order, and, after all, the Legislature has refrained from saying, what it could have said with ease if that had been its intention, 'where there has been an appeal against that decree or order.

19. After referring to,Nagendra Nath's case and after setting out passages from that case the Court observed as follows (p. 256):

Now it is true that their Lordships were not dealing with an actual appeal against an order refusing to set aside an ex parte decree, as we are here, but with an appeal against the decree itself which was sought to be executed, and the immediate result of their decision was to hold that, even if such an appeal were irregular in form and one to which the judgment-debtors were not parties, it was none the less an appeal within the meaning of Article 182. But the principles contained in the passages quoted are, we think, wide enough to cover the present case and other cases of a similar nature. In Firm Dedhraj Lachminarayan v. Bhagwan Das I.L.R. (1937) Pat 306 it was held that the definition of an appeal given by their Lordships would apply to an appeal against an order refusing to set aside an ex parte decree-and with this we respectfully agree. And it is, of course, obvious that the 'intelligible rule' laid down by their Lordships in the concluding sentence of the second passage quoted must apply to the facts of the present case, where the success of an appeal against an order refusing to set aside an ex parte decree has precisely the same effect in regard to execution as a successful appeal against that decree itself.

20. This case is similar on facts to the case in Jivaji v. Ramchandra. The ground of the decision seems to be that the Madras High Court considered that the principles laid down in the passage quoted at p. 256 were wide enough to cover the case they were dealing with and other cases of a similar nature.

21. This case was followed in a subsequent Madras decision in Veeran v. Koya. In that case a preliminary mortgage decree was passed by the District Munsif on July 21,1925. The mortgagor appealed but did not obtain a stay of the proceedings in the trial Court pending the appeal. On November 9, 1925, the District Munsif passed a final decree for sale. The appeal against the preliminary decree was dismissed on March 16, 1927. On March 15,1930, the mortgagee decree-holder applied for execution of the final decree, and on the question whether or not the execution application was in time it was held that limitation for execution ran from the date of the appellate decree and the application for execution was, therefore, not barred by the law of limitation. After referring to the case in Ahmmad Kutty v. Kottekhat Kutti and also after referring to the case in Sriramachandra v. Venkateswara, the Madras High Court said that the decision in Sriramachandra v. Venkateswara governed the case they were dealing with and that the question must, therefore, be decided against the appellant.

22. In the Calcutta High Court the view which prevailed is indicated in Fakir Chand Mandal v. Daiba Charan Parni I.L.R.(1927) Cal 1052which is that the expression 'Appeal' in column 3 of Article 182 of the Indian Limitation Act means an appeal against a decree sought to be executed.

23. In the Patna High Court the view taken is that which is adopted in the Madras cases: see Somar Singh v. Deonandan Prasad Singh I.L.R.(1927) Pat 780 and Firm Dedhraj Lachminarayan v. Bhagwan Das I.L.R.(1937) Pat. 306 .

24. It is apparent from what I have stated above that the correct answer to the question raised in this appeal depends upon what is the actual decision of their Lordships of the Privy Council in Nagendra Nath's case. Even at the risk of repetition it may be stated that the appeal in the High Court in that case was an appeal against the final decree, and the grounds on behalf of the respondents in support of the decision of the High Court were (1) that Madan Mohan's application of August 27,1920, was by reason of its irregularity not an appeal at all, but merely an abortive attempt to appeal; (2) that an appeal in order to save limitation under Clause (2) of the article must be one to which the persons affected, i.e. in the present case the judgment-debtors, were parties ; and (3) that it must also be one in which the whole decree was imperilled. It is in reference to these grounds that their Lordships made the observations which are set forth at page 288 of the report. What they said was that the appeal was nevertheless an appeal even if it was irregular or incompetent, that the appeal was nevertheless an appeal because some of the persons affected by the application were not parties to the appeal and that the appeal was nevertheless an appeal even if the whole of the decree was not inperilled.

25. If, therefore, the decision of their Lordships is confined to the actual facts of the case, and the actual decision is to be understood in relation to the contentions taken on behalf of the respondents, it is obvious that the expression 'Appeal' occurring in Clause (2) of Article 182 of the Limitation Act meant an appeal against the final decree. It is obvious that the expression 'final' in column 3 is used by antithesis to the expression 'interlocutory,' as held in Nagappa Bandappa v. Gurushantappa Shankrappa, I am well aware that even an obiter of their Lordships of the Privy Council would be binding upon this Court as if it was an actual decision given by their Lordships. But reading the facts of the case, the contentions taken in the appeal and the decision of their Lordships, I am not satisfied that it was intended to lay down that the expression 'Appeal' occurring in Article 182, Clause (2), of the Indian Limitation Act, referred to or embraced an appeal other than an appeal against the decree sought to be executed. That was apparently the view taken in Sriramchandra v. Venkateswara, which was approved of in Veeran v. Koya, and I am not satisfied that that is a correct view. I am in agreement with the view taken in Jivaji v. Ramchandra, and that taken in Jacinto v. Fernandez.

26. It must be recognised that there is a sharp difference of opinion as to the proper interpretation of Clause (2), Article 182, of the Indian Limitation Act, and having regard to the cases to which I have referred heretobefore, the Bombay view and the Calcutta view seem to coincide, whereas the view taken in Madras and Patna is opposed to that view; and having given my best consideration to the point, I think, I must hold that the view taken in Jivaji v. Ramchandra and Jacinto v. Fernandez is correct.

27. The learned District Judge from whose decree the present appeal is preferred took the view that as there was no appeal from the final decree which was the decree sought to be executed, time should be computed from the date of the final decree and not from the date on which the appeal from the preliminary decree was declared to have abated. That view he took after referring to Nagappa Bandappa, v. Gurushantappa Shankrappa, which referred to the decision of their Lordships of the Privy Council in Nagendra Nath's case. I think that view of the matter is right, and accordingly, I must hold that the present darkhast is barred by limitation.

28. Civil Revision Application No. 25 of 1942 has been preferred by the heirs of the judgment-debtor against the order of the lower Court made on an application for review of the judgment. The learned District Judge set down the application for review for hearing and against that order the application in revision was made. It appears that the learned District Judge ultimately dismissed the application for review and no order seems now to be called for upon that application.

29. Civil Application No. 214 of 1941 is an application made by the appellants requesting that a certified copy of darkhast No. 1282 of 1938 should be admitted in evidence in appeal under the provisions of Order XLI, Rule 27, of the Civil Procedure Code, and in order to understand that application it is necessary to mention a few facts.

30. The decree was obtained originally by one Pandurang who died some time after and in 1936 the decree was assigned by his legal representatives to one Balwant who is the uncle of appellants Nos. 1 and 2 and the husband of appellant No. 8. Pandurang had filed the first application for execution in 1935. It was before the assignment. It appears that although there was an assignment in 1936, one Dagadu as guardian of the sons of the decree-holder filed an application for execution of the decree on September 14, 1938, and that application for execution was disposed of on September 29,1938. If we admit the certified copy of that darkhast in evidence, it is obvious that the present darkhast filed on November 16,1938, is within time, since the previous application for execution was disposed of on September 29, 1938, and the question which arises in this application is whether we should permit the appellants to produce that document in evidence in order to decide the question of limitation. In support of the application an affidavit of a man called Laxman Martand Jangam, who, it is said, was the person who conveyed the information to the appellants about darkhast No. 1282 of 1938 in about 1941 which was after the disposal of the appeal in the District Court on November 6, 1940. In support of the application another affidavit has been filed by Kedar, appellant No. 2. It is stated that the decree-holder had died prior to the assignment, but assignee Balwant too died on June 28, 1938, and it was not until 1941 that the appellants came to know about darkhast No. 1282 of 1938. The appellants filed in the Court below an application for review of the judgment, and as I have already stated, that application was rejected.

31. The learned advocate for the appellants contends that this Court should allow him to rely upon the document. On the other hand the learned advocate for the heirs of the judgment-debtor contends that it is not permissible to this Court at this stage to permit the appellants to rely upon the document. The present case does not fall within Order XLI, Rule 27, Sub-rule (1)(a), of the Civil Procedure Code. If at all, it will fall within Order XLI, Rule 27, Sub-rule (1)(b), which, so far as material, provides that if the appellate Court requires any document to be produced to enable it to pronounce judgment, or for any other substantial cause, the appellate Court may allow such evidence or document to be produced. As the rule itself says, the question whether or not to allow the appellant to rely on the document is in the discretion of the appellate Court. Under Order XLI, Rule 27, of the Code, it is established by authority that it is the requirement of the Court and not the requirement of a litigant in considering whether or not additional evidence will be allowed to be produced. As observed by their Lordships of the Privy Council in Kessowji Issur v. G.I.P. Railway Co. . 9 Bom. L.R. 671, 'the legitimate occasion for the application of the present rule is when, on examining the evidence as it stands, some inherent lacuna or defect becomes apparent, not where a discovery is made, outside the Court, of fresh evidence and the application is made to import it.' In Parsotim v. Lal Mohar 33 Bom. L.R. 1015 the Privy Council emphasized the construction put upon the rule in Kessowji's case and said that the rule is not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak points in his case and to fill up omissions in the Court of appeal. It is only when the appellate Court 'requires it' (i.e., finds it needful) that additional evidence can be admitted.

32. I think the question is concluded by authority. As held in Bombay Sizing and Stores Supplying Co. v. Kusumgar & Co. I.L.R.(1923) 47 Bom. 647 an application to the Appeal Court for further evidence to be taken on the ground that it has recently been discovered, whether it is made before the appeal is heard, or before judgment is given, does not come within the provisions of Order XLI, Rule 27, of the Civil Procedure Code, 1908. The words 'or for any substantial cause' in Sub-rule (1)(b) of the above rule do not give the Court jurisdiction to entertain an application for recording further evidence on the grounds which would enable an application to be entertained under 0. XLVII, Rule 1.

33. It is clear, therefore, that the grounds which may be available on an application for review are not the grounds which may be relied upon while invoking the Court's jurisdiction under the provisions of Order XLI, Rule 27, and in the present case this is what has precisely happened. It is suggested that in 1941 the appellants came to know about darkhast No. 1282 of 1938. That may be a good ground for review, but it so happened that the application for review has been rejected. That is an additional reason as to why we should not permit the appellants to produce the document in evidence. Apart from that consideration we are bound by the ruling of this Court in the case just cited and we are in agreement with what is stated in Mulla's Civil Procedure Code at page 1193:

In Indrajit's case Indrajit Pratap v. Amur Singh 25 Bom. L.R. 1259 Mr. Ameer Ali referred to Order XLVII Rule 1, and in several cases which followed it, additional evidence has been admitted because it has been supposed that the grounds stated in Order XLVII, Rule 1, do constitute 'substantial cause' Subbayya v. Banga Rao : (1925)48MLJ32 . But with reference to these cases it is necessary to bear in mind Sir George Lowndes' criticism of Indrajits' case [ see Parsotim v. Lal Mohar 38 Bom L.R. 1015and the Bombay High Court has held that the words 'substantial cause' do not give the Court jurisdiction to admit additional evidence on grounds on which an application for review would be entertained [Bombay Sizing Co. v. Kusumgar 25 Bom L.R. 310.

Having regard to these considerations, we must refuse the application.

34. The result is that the appeal fails and must be dismissed with costs. In Civil Revision Application No. 25 of 1942 no order is necessary, and there will be no order as to costs. In Civil Application No. 214 of 1941 the rule will be discharged with costs.

Bavdekar, J.

35. I agree.

36. It is true that in Article 182 the word is 'appeal' without any qualification or limitation. But all the same from the first it has been felt necessary to place some limitation upon it. Thus in Narsingh Sewak Singh v. Madho Das I.L.R. (1882) All 274 which was the case of an appeal from a decree passed upon a review, it was held that even though the words 'where there has been an appeal' in the corresponding article of the Indian Limitation Act of 1877 were not confined to the decree of which execution was sought the appeal contemplated was an appeal in the suit though not necessarily an appeal from the original decree in suit.

37. Even this obviously will not be sufficient because in a suit there may be an appeal, viz. from an interlocutory order, and it can hardly be contended that where, as may well happen, a decree in a suit is obtained before the decision of an appeal from an interlocutory order in the suit the starting point of limitation would be not the date of the decree but the date of the final order in the appeal. For this reason recently the limitation which has been sought to be imposed upon the word 'Appeal' is an appeal which is capable of affecting the decree sought to be executed in any way. The argument is that in case the appeal may affect the decree in any way it is imperilled. There is no reason why the decree-holder should be compelled to file an application for execution while the decree is still imperilled and consequently the word 'Appeal' must be interpreted to mean an appeal not necessarily from the decree which is sought to be executed but an appeal from any other order (not necessarily in that suit) whether amounting to a decree or not which is likely to affect the decree. I have used the words 'not necessarily in that suit' because where an application for setting aside an ex parte decree is made and an appeal is preferred from an order upon the application refusing to set aside that order, such an appeal has been held to come within the purview of Article 182, Clause (2). What difficulties may be created by taking such a view of the word 'Appeal', I will come to it later. It may be sufficient to say now that it will always be felt necessary to qualify the word 'Appeal' in some way.

38. The second thing to remember is that the preponderance of authority in this Court is in favour of the view that the word 'appeal' refers to an appeal from the decree or order sought to be executed. The point first arose as far as we are aware in the case of Jivaji v. Ramchandra I.L.R(1891). 16 Bom. 123. It was a case of an appeal preferred from a decision upon an application to set aside an ex parte decree and it was specifically held that the word 'Appeal' meant clearly an appeal from the decree or order sought to be executed. It is true that this view was departed from in a later decision of a division bench of this Court in Nagappa v. Gurushantappa (1932) 35 Bom. L.R. 432. It has got to be remembered, however, that that decision proceeded upon an interpretation of the Privy Council case referred to by my brother Dixit in his judgment, viz. the case of Nagendra Nath Dey v. Suresh Chandra Dey 34 Bom. L.R. 1065. I shall have to refer to this case a little later in order to determine as to whether it has impliedly overruled the case of Jivaji v. Ramchandra. But Nagappa v. Gurushantappa was concerned with an appeal from the order granting review. There was in the first instance a decree, then an application for review which was granted and then a decree based upon the review. There was an appeal from the original decree and there was also an appeal from the order granting the review, but none from the decree which was ultimately passed upon the granting of the review. The decree-holder was not seeking to execute the decree which was originally passed and there was no appeal from the decree which was sought to be executed. In the result if he wanted to take advantage of the provisions of Article 182, Clause (2), he had to rely upon the appeal from the order granting the review. But this contention that he was entitled to take advantage of the said provisions was negatived by the learned Subordinate Judge from whose decision the appeal was preferred, on the ground that the appeal was not from the decree which was sought to be executed. Now, even though there is a discussion in that case about whether that appeal could furnish the decreeholder with a fresh point of limitation, we find no attempt to answer the argument of the learned Subordinate Judge that the appeal was not from the decree sought to be executed, unless it is to be found in the paragraph at p. 434, Nagappa v. Gurushantappa beginning with 'On behalf of the appellant reliance is strongly placed on the recent decision of the Privy Council in the case of Nagendra Nath Dey v. Suresh Chandra Dey.' That argument again it will be convenient to deal with subsequently when I refer to Nagendra Nath Dey v. Suresh Chandra Dey. But an analogous question did arise subsequently for determination in Jacinto v. Fernandez : AIR1939Bom454 . It must be admitted that the remarks I mention below from that judgment are obiter because the point for determination was as to whether any time was prescribed for making an application for execution of the decree in so far as it directed partition of lands assessed to land revenue, and for the determination of that point it was not necessary to express any opinion but the opinion was expressed, and it was stated (p. 923):

It is perfectly plain on the language of Article 183 that the words 'where there has been an appeal,' in the last column, mean an appeal from the decree sought to be executed, and not an appeal from another decree, though made in the suit.

39. Coming next to the question as to what interpretation should be placed on Clause (2) it is necessary to refer to the scheme of Article 182. In column 3 it provides for seven points of limitation out of which 6 and 7 are what may be called special cases. The first is the simplest case where the starting point of limitation is furnished by the decree itself, and 2 to 4 are starting points in cases where either there has been an appeal or the decree is sought to be reviewed and review has been obtained, or the decree has been amended upon an amendment application. Clause 5 relates to the case where there has been an application for execution, or an application for step-in-aid of execution. Clauses 2, 3 and 4 consequently contemplate cases in which the decree may be altered upon proper proceedings having been taken for such alteration. 4 and 5 specifically have reference either to the decree or order sought to be executed. 2 and 3 do not specifically refer to the decree or order sought to be executed. But it need not be held because of that that the Legislature intended to make any distinction. Clause (4) did not find any place in the old Act of Limitation, 1877. It was added subsequently, and when it was added the words which were used were 'where the decree has been amended' just as in Clause (5) after the words application... for execution or take some step-in-aid of execution the words 'of the decree or order' found a place. But Clauses (2) and (8) were nearer to Clause (1) than Clauses (4) and(5), and when Clause (2) began with the words 'where there has been an appeal' the proximity of these words to the words 'the date of the decree or order' in Clause (1) was quite enough to show that the appeal meant appeal from the decree or order sought to be executed. There are no other words whether in Clause (2) in the third column of Article 182 or near about to which the word 'appeal' could have reference. In my opinion, therefore, the word 'appeal' must mean an appeal from the decree or order sought to be executed. The only other interpretation which has been sought to be placed upon the word, namely, appeal which is likely to imperil the decree or order cannot be given to it without inserting in Clause (2) the words 'likely to imperil the decree or order' or some equivalent words after the word 'appeal.' Secondly, this interpretation is consistent with the scheme of Clauses (1) to (5), Clause (1) having reference to the cases in which (1) the decree or order remains unaltered, because there has been no appeal, no application for review or amendment and (2) there have also been no application for execution or step-in-aid of execution. Clause (2) has reference to the cases where there has been an appeal. Clauses (3) and (4) refer to cases in, which the decree has been altered upon an application for review or amendment, and Clause (5) to the case in which there has been an application for execution or step-in-aid of execution of the decree. If Clauses (3), (4) and (5) have reference to cases where the review, the amendment and the application for execution or the application for a step-in-aid of execution are of the decree or order sought to be executed, then Clause (2) must have reference to cases in which the appeal referred to is from the decree or order sought to be executed.

40. The difficulty in the way of holding that the word 'appeal' means an appeal capable of affecting the decree may be obvious from one or two illustrations. Following that interpretation it has been held in Madras that an appeal from an order dismissing an application for setting aside an exparte decree comes within the purview of Article 182, Clause (2). Suppose now a decree having been obtained the judgment-debtor sought to set it aside on the ground of fraud. Suppose, again, his suit was dismissed and an appeal was preferred by him against it. If we were to hold that the word 'appeal' meant an appeal capable of affecting the decree, then the appeal of the judgment-debtor, who is seeking to avoid the decree on the ground of fraud, would come within the purview of Article 182, Clause (2). Suppose, again, that his appeal from the decree dismissing his suit to avoid the decree was dismissed ex parte, and he makes an application to the appellate Court to re-admit the appeal and the application was refused. He appeals from this order refusing to re-admit. This appeal would necessarily imperil the decree which the judgmentdebtor seeks to set aside on the ground of fraud with the result that this appeal again would have to be held to come within the purview of Article 182, Clause (2), and we could go on arguing like that as long as it is possible to file appeals from the order refusing to set aside an ex parte dismissal of an appeal on default or to re-admit the appeal. It appears to me that if this interpretation were to be accepted, we would be extending the meaning of the word 'Appeal' beyond what can reasonably be done, and that is apart from the fact that we have got to interpret the words in the context in which they are placed.

41. Coming now to the Privy Council decision, it would not be necessary to state the facts which are set out at length in the judgment of my learned brother. But the decree-holder in that case sought to rely upon an appeal which was from the decree which was sought to be executed. That is the main fact which should never be lost sight of. The objections which were taken on behalf of the judgmentdebtor to the appeal being included in Article 182, Clause (2), were that the appeal was irregular and incompetent, that it was not against all the parties who were parties to the suit and that it did not imperil the whole decree, and their Lordships, while dealing with the question, said that they were not concerned with any one of these things because the plain meaning of the word 'appeal' in Article 182, Clause (2), was an appeal without any qualification, It is true that if these words arc interpreted as if they were the words of a statute disregarding the fact that they were used in a case in which the appeal was from the decree sought to be executed and obviously in consciousness of that fact they can bear the interpretation that there was no limitation placed upon the appeal not even that it should be from the decree or order sought to be executed but in my view it would not be correct so to interpret them. Their Lordships did not indeed say in so many words that so long as the appeal was from the decree or order sought to be executed, it made no difference what was the character of the appeal and who were the parties to it. That was because the appeal before them was an appeal against the decree sought to be executed. They had only to deal with the irregularity of the appeal, incompetency of the appeal and the absence of all parties to the appeal. They had also to repel a contention that the appeal was not against the whole of the decree sought to be executed, and they in fact repelled those contentions by saying that there was no qualification in the article to the word 'Appeal.' They, therefore, added that there was no such qualification upon the word 'Appeal' as would enable the judgment-debtor to contend successfully that the appeal was not within the purview of Article 182, Clause (2). But that does not make a difference to the word 'appeal' in the article necessarily meaning an appeal from the decree or order sought to be executed.

42. It is true that there is a passage in the judgment of their Lordships of the Privy Council which says that it was an intelligible rule that so long as there was any question sub judice between any of the parties those affected should not be compelled to pursue the so often thorny path of execution which, if the final result was against them, may lead to no advantage. But then as their own judgment will show thereafter, they were giving a justification for the rule. That would be quite clear from the words that follow:

Whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the Article are plain..

43. The point to remember is that the words in the sentence 'It is at least an intelligible rule' were not intended to be a canon for interpretation of Article 182, Clause (2), nor do any of the words of this judgment which have been quoted in the judgment of this Court in Nagappa v. Gurushantappa at p. 434 in the paragraph commencing that 'On behalf of the appellant reliance is strongly placed on the recent decision of the Privy Council in the case of Nagendra Nath Dey v. Suresh Chandra Dey,...' lay down such a canon. Therefore, merely because their Lordships of the Privy Council held in that case that the appeal, though irregular in form and insufficiently stamped, was nevertheless an appeal within the meaning of Article 182, it cannot be said that they intended to say that the appeals were not confined to appeals from the decree or order sought to be executed and as a matter of fact no possible limitation could be placed upon the appeals comprised in that word except such as would lead to absurd results. In our opinion, therefore, the authority of the decision of this Court in Jivaji's case is still unshaken, and even though there are remarks in the ease of Nagappa v. Gurushantappa, which would seem to throw a doubt upon its authority, we should take it as still good law. Our own view is also the same.

44. I, therefore, agree with the order proposed by my learned brother.


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