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Laxman Govinda and ors. Vs. Dagdu Shripati Satale and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 552 of 1951
Judge
Reported inAIR1954Bom457; (1954)56BOMLR563; ILR1954Bom1038
ActsLimitation Act, 1908 - Schedule - Articles 179(3), 182, 182(3) and 183; Code of Civil Procedure (CPC), 1908 - Sections 48 and 623 - Order 47, Rules 4(1) and 8
AppellantLaxman Govinda and ors.
RespondentDagdu Shripati Satale and ors.
Appellant AdvocateS.R. Parulekar, Adv.
Respondent AdvocateR.G. Samant, Adv.
Excerpt:
limitation - darkhast application - articles 179 (3), 182, 182 (3) and 183 of schedule to limitation act, 1908 and sections 48 and 623 and order 47 rules 4 (1) and 8 of code of civil procedure, 1908 - decree with respect to recovery of possession - review application of judgement debtor dismissed - whether time period taken for disposal of review application be excluded from limitation period for decree-holder to file 'darkhast' application - limitation period in case of review commences from date of decision in review by virtue of section 182 (3) - said provision applicable to cases where review application has succeeded - said provision not applicable in attempt for obtaining review which resulted in dismissal of review application - dismissal of review renders commencement of.....gajendragadkar, j.1. this appeal raises a short question of limitation which arises in this way. a suit (no. 14 of 19411 to recover possession of certain immoveable property was dismissed on 3-9-1945. the plaintiff preferred an appeal against this decree, but the appeal (civil appeal no. 46 of 1946) was also dismissed on 14-8-1946, thereafter the plaintiff applied for a review of the said- decree (review application no. 10 of 1947). on this application, rule was issued, but ultimately it was discharged and the application for review was dismissed on 8-1-1948. the present darkhast application has been filed by the defendant to recover his costs from the plaintiff, and he has been met with a plea of limitation.it is common ground that if the defendant is entitled to exclude the period which.....
Judgment:

Gajendragadkar, J.

1. This appeal raises a short question of limitation which arises in this way. A suit (No. 14 of 19411 to recover possession of certain immoveable property was dismissed on 3-9-1945. The plaintiff preferred an appeal against this decree, but the appeal (civil appeal No. 46 of 1946) was also dismissed on 14-8-1946, Thereafter the plaintiff applied for a review of the said- decree (review application No. 10 of 1947). On this application, rule was issued, but ultimately it was discharged and the application for review was dismissed on 8-1-1948. The present darkhast application has been filed by the defendant to recover his costs from the plaintiff, and he has been met with a plea of limitation.

It is common ground that if the defendant is entitled to exclude the period which was occupied by the plaintiff's application for review, the present darkhast would be In time. On the other hand, if the said period cannot be excluded, then the present darkhast would be barred by time under Article 182, Limitation Act. That is how the only question which arises before us in the present appeal is whether Clause (3) in column 3 of Article 182, Limitation Act, applies to the present case. The executing Court has held that this clause is inapplicable to the present case and has, therefore, dismissed the darkhast as barred by time.

2. Article 182 provides for limitation for the execution of a decree or order of any civil Court not provided for by Article 183 or by S. 48, Civil P. C. The period prescribed is three years and the starting point of limitation in respect of such applications for execution is indicated in column 3 of the article. Clause 3 in column 3 of Article 182 lays down that where there has been a review of Judgment, the starting point of limitation is the date of the decision passed on the review. Mr. Parulekar contends that the words used in this clause are wide enough to Include cases where an application for review has been made and the same has been entertained though ultimately review may have been refused.

It would be convenient to refer to the material provisions of Order 47, Civil P. C. in appreciating this argument. Order 47 deals with review. Rule 4, Sub-rule (1), of Order 47, provides that if it appears to the Court in dealing with an application for review that there is not sufficient ground for a review, it shall reject the application. Mr. Parulekar concedes that if an application for review is summarily dismissed at the initial stage under Order 47, Rule 4, Sub-rule (1), the provisions of Clause 3 in column 3 of Article 182, Limitation Act, would not apply. In such a case, the application for review has not been entertained at all and so the extended period is not available to such an application.

While dealing with an application for review, Sf the Court is of the opinion that the application for review should be granted, it shall proceed to graftt the same under Rule 4, Sub-rule (2), of O. 47. The proviso to the Sub-rule requires that before the application is thus granted, notice of the application shall be issued to the opposite' party to enable him to appear and be heard in suppprt of the decree or order, a review of which is applied for. Mr. Parulekar contends that as- soon as the Court proceeds to issue & notice under the proviso to Sub-rule (2) of R. 4, It virtually entertains the application, and when the application for a review has crossed this stage, then despite the final order of rejection which may be passed on the application, the benefit of the extended period of limitation under Clause (3) of schedule 3 of Article 182 must be available to the case.

Rule 8, Order 47 lays down, that where an application for review is granted, a note thereof shall be made in the register and the Court may at once rehear the case or make such order in regard to the re-hearing as it thinks fit. It would thus be noticed that an application for a review which is made under the provisions of Order 47, passes through three stages. At the first stage, the Court considers the question whether there is any ground prima facie appearing in the application which would justify the issue of a notice to the opponent.

If the Court is satisfied that there is not even prima facie ground for issuing such notice, then the application is dismissed and there is an end of the matter. If the Court is satisfied that there are prima facie grounds for entertaining the application, a notice is issued calling upon the opponent to appear, and on hearing the opponent the Court may either grant the review or refuse to grant him. If the application for review is rejected, there is an end of the said application and nothing more needs to be done. That may be regarded as the second stage of the review proceedings.

The third stage in these proceedings is reached where on hearing the opponent the Court is satisfied that a case has been made out for reviewing the decree or order, and when the Court comes to this conclusion, the Court makes an order granting review and proceeds to act under Rule 8, Order 47. What follows pursuant to the order, made under Rule 8, Order 47, can be described as the third stage of these proceedings. According to Mr. Parulekar, all cases falling under the second or the third stage of these proceedings are entitled to invoke the benefit of the extended period of limitation in question.

3. The words used in Clause (3) are 'where there has been a review of judgment.' According to Mr. Pamlekar, whatever may be the final order passed at the second stage of the review proceedings, there has undoubtedly been a review or reconsideration of the judgment. Mr. Parulekar insists that the words 'where there has been a review of judgment' should not be construed in a narrow sense so as to include only such cases where in fact the judgment has been reviewed. In support of this contention, Mr. Parulekar has relied upon a decision of Barlee J. in -- 'Narayan v.' Radhabai AIR 1936 Bom 162 (A).

At the outset, it may be pointed out that Barlee J. was dealing with a case where an application for review had in fact been granted and even on the narrow construction of the material words used in Clause (3), his decision that the benefit of the said clause was available was, with respect, undoubtedly right. But, though on the facts the decision could be supported even on the narrow construction of the material words, it does appear that the learned Judge has made general observations which lend some support to Mr. Parulekar's contention.

Barlee J. referred to the stages through which an application for review has to pass and he observed that his view was that the words used In Article 182 (3) 'decision passed on review' mean a decision passed in review proceedings and whatever such a decision is, it gives a fresh starting point of limitation. In the case before Barlee J. review' had been granted by the trial Court, there was an appeal against that order and that order had been reversed by the appellate Court and so the learned Judge had to consider even the provisions of Article 182, Sub-clause (2). We are not concerned with those provisions in the present appeal.

4. In my opinion, the clause 'where there has been a review of judgment' is intended to refer only to such cases where in fact there has been a review of the judgment and it does not cover infructuous proceedings taken by a party for the purpose of obtaining the relief of such review. Clause (3) is Intended to give an extended period of limitation and the starting point of such limitation is the date of the decision passed on the review. It seems reasonable that if a review has in fact been granted and the order or decree has been modified in consequence, limitation should begin to run from the date of the decision passed on the review.

On the other hand, if the application for review has been dismissed whether at the first or at the second stage, the order or decree which is sought to be executed remains unimpaired and there is no reason why a further period of limitation should be available when the said order or decree is put under execution. Mr. Parulekar fairly concedes that, if an application for review is dismissed under Order 47, Rule 4, Sub-rule (1), Article 182 (3) cannot apply and indeed no decision has taken the view that the said clause applies even to a case where an application for review has been summarily dismissed.

But, if the words used in Article 182(3) receive the liberal interpretation for which Mr. Parulekar contends, it would be difficult to appreciate why even the summary dismissal of the application for review under Order 47, Rule 4, Sub-rule (1), should not attract the provisions of Article 182(3). Even in such a case, an application for review has been made, and before it is dismissed, the Court has applied its mind to the grounds set forth in the application for review and has in that sense seen whether the judgment or order deserves to be reviewed.

If, according to Mr. Parulekar, the provisions of Article 182(3) would apply to an application which has entered the second stage even though the application may ultimately have been dismissed, it is not easy to see why the same result should not follow in regard to the application which has been dismissed at the first stage. In both these cases, the Court has undoubtedly considered the question as to whether the judgment, order or decree deserves to be reviewed and in both the cases it has come to the conclusion that an application for review cannot succeed. The fact that notice has been issued while the application reaches the second stage cannot, in my opinion, make a material difference as to the interpretation of the words used in Article 182(3).

I am disposed to hold that Article 182(3) is intended to be applied only to such cases where the application for review has succeeded and a decisionin favour of the party asking for review has beenpassed. All other cases are no doubt cases wherethere has been an attempt at obtaining an orderfor review of the judgment, but Clause (3) is not intended to cover all proceedings taken by partieswith a view to obtain a review of judgment. Itis only where such proceedings succeed and thereview is granted that Article 182(3) comes intooperation.

5. This point has been considered by the Madras, Allahabad and Patna High Courts in their reported judgments and it may be stated broadly that the consensus of judicial opinion is In favour of the view which I have adopted. In 'Kurupam Zamindar v. Sadasiva', 10 Mad 66 (B) a similar question had arisen for decision under Article 179(3) of the Limitation Act and it was held by Collins C. J., and Parker J. that the said clause only applies to cases in which there has been a review of judgment and so it would not apply to the case before the Court because the review had in fact been refused. In -- 'Bengali Mal v. Baijnath Prasad AIR 1942 All 338 (C) Yorke J., has observed that:

'In their plain meaning the words 'where there has been a review of judgment' in Article 182(3) only cover cases where the review application has been allowed and there has been an actual review or re-hearing of the case or appeal.'

In coming to this conclusion, the learned Judge has referred to the earlier decisions of the Allahabad High Court and has expressed his strong dissent from the view taken by Mr. Barlee J., in AIR 1936 Bom 162 (A)'. So far as the Patna High Court is concerned, the same view has prevailed except on one occasion where Article 182(3) has been liberally construed in the manner suggested by Mr. Parulekar. This liberal construction has been put on Article 182(3) by Courtney-Terrell C. J. and James J. in -- 'Firm Dedhraj Lachminarayan v. Bhagwan Das AIR 1937 Pat 337 (D); but the view thus expressed by these learned Judges has been very strongly dissented from in the Patna High Court itself by Fazl Ali and Rowland JJ. in -- 'Moham-mad Naqir v. Aiauddin Ahmad : AIR1941Pat213 (E).

Fazl Ali J., has referred to several decisions in which this question was considered and he has come to the conclusion that the broad and general construction of the words used in Article 182(3) has never been placed upon those words in any reported judgment except in 'Firm Dedhraj Lachminarayan v. Bhagwan Das (D)', and he has added that he saw no justification for adopting such a broad and general construction.

Therefore, it would be correct to say that in so far as the reported decisions to which our attention has been drawn are concerned, the consensus of judicial opinion is in favour of the view that the words used in Article 182(3) must in their context be Interpreted to mean cases where applications for review have been allowed and the start-ing point of limitation mentioned in Article 182(3) would apply only where a review has been allowed with the result that the order or decree which is sought to be executed would be the order or decree which has been passed after granting the review.

6. Incidentally, some assistance may be sought from the observations made by Sir Lawrence Jenkins C. J. in -- 'Vadilal v. Pulchand', 30 Bom, 56 (F). The learned Chief Justice was dealing with the different stages through which an application for review had to pass under the earlier Code of 1882; but the provisions with regard to these stages under the earlier Code of 1882 were substantially similar to those under O. 47. Having described the three stages through which a successful application for review passes, the learned Chief Justice observed (at p. 60):

'If the rule is discharged, then the case ends. If, on the other hand, the rule is made absolute, then the third stage is reached; the case is reheard on the merits & may result in a repetition of the former decree or in some variation of it. Though in one aspect the result is the same whether the rule be discharged or on the re-hearing the original decree be repeated, in law there is a material difference, for, in the latter case, the whole matter having been reopened, there is a fresh decree. In the former case the parties are relegated to, and still rest on, the old decree.'

In other words, where review has not been granted and the decree or order remains unimpaired, it is the decree which is sought to be executed and there is no justification for allowing the commencement of the period of limitation in respect of the execution of such decree or order under Article 182(3). Therefore, in my opinion, the lower Court was right in holding that the present dark-hast application is barred by time.

7. The result is the appeal fails and must be dismissed with costs.

Vyas, J.

8. I agree with the judgment just delivered by my learned brother.

9. The plaintiff's suit for possession of immove-able property having been dismissed, he filed an appeal against the decree which also was dismissed. He then filed a review application No. 10 of 1947 upon which a rule was issued. But the rule was subsequently discharged and the review application was dismissed. This happened on 8-1-1948. The present darkhast which has been filed by the defendant to recover his costs from the plaintiff has been resisted by the plaintiff on the ground of limitation, and the question has arisen whether the period between the filing of the review application No: 10 of 1947 and the dismissal of the said application should be counted or excluded for the purpose of limitation. If it is counted, the dark-hsst would be time-barred. But, if it is excluded, the darkhast would be within limitation.

10. The relevant article of the Limitation Act is Article 182(3) and the short question of law before us is as to the construction of the words 'where there has been a review of judgment' in Article 182 (3). Do these words mean that the review application should have resulted in the actual review of the judgment which was sought to be challenged or are they wide enough to cover cases where an application for review has been filed and a notice issued thereupon to the other side, but where the eventual result has been the rejection of the application

There is no controversy as to the legal position that if the application for review is rejected Straightway under the provisions of Order 47, Rule 4 Sub-rule (1), Article 182 (3) will not apply, the reason being that in such a case the application is not entertained at all, but is summarily dismissed. We have not been referred to any authority which has taken the view that Article 182(3) will apply even when the application for review is summarily dismissed and indeed Mr. Parulekar concedes that the provisions of Article 182(3) will not apply to a case of summary dismissal of the review application.

A review application, made under Order 47, passes through three stages, and if it survives the first stage at which it may end in a summary dismissal under Rule 4, Sub-rule (1), of Order 47, it enters upon the second stage when the Court orders the issue of a notice to the other side under the proviso to Sub-rule (2) of R. 4. After the notice is issued, two things may happen. After hearing the opponent, the Court may reject the application and discharge the rule. If that happens, the case ends there and that is the second of the three stages. But it may also happen that on hearing the opponent the Court may grant the review and make an order under Rule 8, Order 47. That is the third and the final stage.

AS I have stated above, if the review application ends up at the first stage only, there is no controversy that there is no decision passed on the review and the provisions of Article 182 (3) do not apply. There is also no controversy that if the third stage is reached by the review application and the review is granted, there is a decision passed on the review. In such a case, obviously the time which elapsed between the initiation of the first stage, i.e., filing of the review application and the conclusion of the third stage of the review proceedings, i.e., the decision granting the review, must be excluded for the purpose of limitation.

The controversy is as to the second stage. Mr. Parulekar contends that cases falling under the second stage, i.e., cases in which a notice of the review application is issued to the opponent but the application is thereafter rejected, should have the benefit of the provisions of Article 182(3) regarding extension of time. According to Mr. Parulekar, in all cases falling under the second stage, there is a decision passed on the review, because the order of rejection is passed by the Court after hearing the opponent and after reconsidering the judgment. In effect, Mr. Parulekar says that we should not put a narrow interpretation on the word 'review' and should not hold that the expression 'decision passed on the review' means that the review should be granted.

I am unable to agree, as I cannot see any substantial difference between the Court rejecting an application for review straightway without issuing a notice and the Court arriving at the same result after the issue of a notice, in both cases it is clear that the Court considers the grounds set out in the application, goes through the judgment which is challenged, sees whether it should be reviewed and then rejects the application, if in the former case the provisions of Article, 182(3) do not apply, as it is not disputed that they do not apply, I am unable to see why in the second case they should be held to apply.

In both cases, i.e., in cases where the review application is dismissed at the end of the first stage and those where it is dismissed at the end of the second stage, the decree which is attacked is not varied or reversed, but remains good, and I do not see why the prescribed limitation should be extended when the said decree comes up for execution. Mr. Parulekar relies upon the decision in AIR 1936 Bom 162 (A)' in which Earlee J. held that the starting point of limitation under Article 182(3) was the order passed on review. It may be noted that in the case with which Barlee J. was dealing, the review was allowed.

Therefore, in that case the question of what Mr. Parulekar calls putting a wider construction on the words 'where there has been a review of judgment' did not really arise at all. However, in the course of his judgment, Barlee J. wenton to observe that his view was that the words in Article 182(3) 'decision passed on review' meant 'a deci -sion passed in review proceedings; and whatever such a decision is, it gives a fresh starting point of limitation.' Mr. Parulekar is using these observations in his favour and they do appear to support his contention. It must, however, be said with respect that these observations are against the weight of the judicial authority hi this country.

In 30 Bom 56 (P)', an order in execution was passed on 20-11-1902, and in supplement of it a further order as to costs was made on 20-12-1902. On 3-8-1903, the respondent before the High Court, considering himself aggrieved, applied under Section 623 Civil Procedure Code for a review of Judgment. Thereupon, a notice was issued to the opposite party and the application for review was heard with the result that the Judge, after disposing of certain technical objection proceeded to deal with the case on the merits and having done so, he rejected the application for review on 14-9-1903.

It was contended before the High Court for the appellant that the order of 14-9-1903, was under Section 629 a final order inasmuch as it was one reject-ing the application. The point which arose for the decision of the High Court was whether the adjudication made on 14-9-1903, was made upon rehearing or was merely an order for rejection. In the course of his judgment, jenkins C. J. observed (at p. 60):

'.....in order to determine this point, we must have regard to the various stages through which an application for review may pass. It commences ordinarily with an 'ex parte' application under section 623 of the Civil Procedure Code. The Court then may either reject the application at once, or may grant a rule calling on the other side to show cause why the review should not be granted. In the second stage the rule may either be admitted or rejected; and it is obvious that the hearing of this rule may involve, to some extent, an investigation into the merits.

If the rule is discharged then the case ends. If, on the other hand, the rule is made absolute, then the third stage is reached; the case is reheard on the merits and may result in a repetition of the former decree or in some variation of it. Though in one aspect the result is the same whether the rule be discharged or on the re-hearing the original decree be repealed, in law there is a material difference, for, in the latter case, the whole matter having been reopened, there is a fresh decree. In the former case the parties are relegated to, and still rest on, the old decree.'

With respect, Barlee J. in AIR 1936 Bom 162 (A)', overlooked this material difference in law to which Jenkins C. J. so clearly referred in his judgment. Where an application for review is made and straightway rejected or rejected after notice, no fresh decree is passed and the parties are relegated to the old decree and in such cases it must be held on the authority of 30 Bom 56 (P)', that there is no review of judgment and therefore no decision passed on the review.

11. In AIR 1942 All 338 (C)', a decree in the suit was passed on 3-11-1932. Against that decree there was an appeal which was dismissed on 19-4-1934. On 16-7-1934, there was an application for review of judgment, and that application was rejected on 12-9-1936, with the result that there was no re-hearing of the appeal. Then an application for execution of the decree was made on 8-2-1939, and on receipt of notice the judgment-debtors entered an objection that the application for execution was barred by limitation as having been made more than three years from the date of the appellate decree.

It was contended for them that limitation began to run from 19-4-1934, while on behalf of the decree-holders it was contended that limitation began to run from 12-9-1936. The Munsif allowed the judgment-debtor's objection and held that the dar-khast was time-barred. On the decree-holders going in appeal, the Civil Judge held that the time began to run from the dismissal of the application for review. The judgment-debtors appealed to the High Court and the appeal was allowed. It was held by Yorke J. that the words ' where there has been a review of judgment' In Article 182 (3) must be strictly interpreted as meaning what they say.

He observed that prima facie where an application for review of judgment had been rejected, it was clear that there could not have been a review of judgment. On the other hand, where the application had been allowed, then the period of limitation began to run from the date of the substituted decree which resulted on a re-hearing of the suit or appeal as the case might be. Yorke J. said (at p. 333):

'.....taking the plain meaning of the words where there has been a review', they only cover cases where the application has been allowed and there has been an actual review or re-hearing of the case or appeal. In that case the limitation will begin to run from the date of the new decree.'

In this case, the view taken by Mr. Justice Barlee in AIR 1936 Bom 162 (A)', was strongly dissented from.

12. In -- 'Rai Brijraj v. Naurtan Lal : AIR1917Pat157 (G), there was a suit for a declaration which was dismissed for default on 15-11-1912, and costs amounting to Rs. 642-11 were awarded to the respondent before the High Court. There was an application to set aside the dismissal for default, which was dismissed on 17-6-1913, & costs amounting to Rs. 82-7-3 were awarded to the present respondent. Then there was an appeal against the order rejecting the last-mentioned application, which was dismissed on 30-11-1914, and costs amout-ing to Rs. 132-2-5 were awarded to the respondent.

Lastly, there was an application for leave to appeal to the Privy Council which was dismissed on 6-12-1915, and costs amounting to Rs. 80 were awarded to the respondent. An application was made by the respondent for recovery of the costs awarded to him under the decree and the three orders mentioned above. This application for executions was presented on 11-1-1916. There could be no doubt that the application was made within time as regards all the sums, except the first-mentioned sum of Rs. 642-11-0.

The Court below had held that the application was made within time with regard to that sum also, and the question which arose for the decision of the High Court, was whether the application was barred as regards the first mentioned sum of Rs. 642-11-0. It was contended for the respondent that the application to set aside the dismissal of the suit for default was a review of judgment wthin the meaning of Article 182(3). It was held that this contention would not avail the respondent, because Article 182(3) did not apply where an application for a re-hearing or review had been dismissed. It was observed (at p. 158):

'.....the intention of the Legislature seems to have been to allow further time to a holder of a decree or order for costs where there has been an application for review which has been heard and a fresh decision has been pronounced, not to allow further time where an application -for re-hearing or review has been put forward on untenable grounds and has consequently been rejected or dismissed.'

13. In : AIR1941Pat213 (E), the appellants before the High Court brought in 1932 a title suit against the respondent which was dismissed on 4-8-1933. with cost. Thereupon they appealed to the District Judge, but their' appeal also was dismissed with costs on 22-12-1934. The. appellants then preferred a second appeal to the High Court which was dismissed with costs on 19-9-1935 as talbana was not filed within, the time prescribed. The appellants thereupon filed a miscellaneous judicial case for the restoration of the second appeal and this case was dismissed with costs on 16-1-1936.

Thereafter, on 11-1-1939, the respondents executed their decree for costs which included the costs allowed to them in the trial Court in the first and the second appeals and in the miscellaneous case. A question then arose as to whether the period of limitation for the execution of the decree for the costs of the suit and the appeals would run from 19-9-1935, the date when the second appeal was dismissed for default, or from 16-1-1936, when the miscellaneous Judicial case was dismissed.

The case was held to be governed by art. 182(3) as both parties had proceeded on the assumption that the application for restoring the second appeal was to be treated as an application for review. Fazl Ali J. agreed entirely with the view which was taken in a number of cases that the provisions of Article 182(3) did not apply where the application for review had not been granted, but rejected. In such cases, limitation was not enlarged, said Fazl All, J.

It was contended for the respondent in that case that the words 'where there has been a review of judgment' must mean 'where there has been an application for review of Judgment'. Fazl Ali J. observed that there was no Justification whatever for inserting the word 'application'. It was pointed out that the words 'where there has been a 'review of Judgment' must mean a review by some one who can review the judgment and therefore they cannot mean where there has been an application for review of judgment.'

14. In 10 Mad 66 (B)', also it was held that where a review of Judgment had been applied for, and, after notice to the other side, refused, the period during which such an application was pending could not be excluded in computing the period of limitation for execution of the decree.

15. In the result, therefore, I agree with the view taken by my learned brother and hold that in this case the limitation could not be enlarged under art. 182(3). The appeal must, therefore, fail and be dismissed with costs.

16. Appeal dismissed.


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