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Sardarsing Amarsing Gaherwal Vs. Ramakaran Ramnath Upadhaya and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMumbai High Court
Decided On
Case NumberFirst Appeal No. 40 of 1956
Judge
Reported in(1959)61BOMLR984
ActsLimitation Act, 1908 - Schedule - Article 182 and 182(2)
AppellantSardarsing Amarsing Gaherwal
RespondentRamakaran Ramnath Upadhaya and ors.
Appellant AdvocateV.B. Rege, Adv.
Respondent AdvocateR.G. Samnat, Adv. for ;N.N. Konkar, Adv. and ;Ramanath Shivlal, Adv.
Excerpt:
.....38 bom. l.r. 215, narmadabai narayanshet v. hidayatalli (1946) 50 bom. l.r. 696, rameshwar prasad v. parmeshwar prasad [1951] a.i.r. pat. 1, f.b., jacinto v. fernandez (1939) 41 bom. l.r. 921, fakir chand mandal v. daiba charon parni (1927) i.l.r. 54 cal. 1052 and shivaramachari v. anjaneya [1951] a.i.r. mad. 962, f.b., referred to. - - the question is as to the construction of the word appeal in clause (2) of art 182. does the word mead an appeal from the decree which is sought to be executed or would it include an appeal from an order having direct and immediate connection with the decree which is sought to be executed this is interesting point arises upon the following circumstances: but in construing such provisions equitable considerations are out of place, and the strict..........clause (2) of art 182 of the indian limitation act. the question is as to the construction of the word appeal in clause (2) of art 182. does the word mead an appeal from the decree which is sought to be executed or would it include an appeal from an order having direct and immediate connection with the decree which is sought to be executed this is interesting point arises upon the following circumstances: (2) the appellant plaintiff filed a suit, being suit no. 15 of 1948 to set aside a certain sale deed which was passed by his father. the value of the property that was the subject matter of the sale deed was rs. 17, 187-8-0 the dispute was referred to arbitration and the arbitrator made an award upon which a decree was based. the award decree was passed on 19-10-19500 and it was for.....
Judgment:

(1) This is first appeal arises out of an execution proceeding and it raises a question under clause (2) of Art 182 of the Indian Limitation Act. The question is as to the construction of the word appeal in clause (2) of Art 182. Does the word mead an appeal from the decree which is sought to be executed or would it include an appeal from an order having direct and immediate connection with the decree which is sought to be executed This is interesting point arises upon the following circumstances:

(2) The appellant plaintiff filed a suit, being Suit No. 15 of 1948 to set aside a certain sale deed which was passed by his father. The value of the property that was the subject matter of the sale deed was Rs. 17, 187-8-0 The dispute was referred to arbitration and the arbitrator made an award upon which a decree was based. The award decree was passed on 19-10-19500 and it was for the amount of Rs. 4,000/- the plaintiff filed a Miscellaneoous Application being Miscellaneous Application NO. 272 id 1949 Whereby the challenged the award decree dated 19-10-1950. He sought to have the award decree set aside. The abovementioned Miscellanioues Application No. 272 of 1949 was rejected on 10.10.1950. from the said order or rejection the plaintiff appealled to the High Court had the High court dismissed the appeal on . 8.7.1953. The present darkhast to execute the award decree was filed by the plaintiff on 11.11.1954.

(3) Now, the question arisming for consideration is as to what is the starting point of limitation upon the above facts. Would the starting point be 19-10-1950, the date upon which the award decree was passed, or would the limitation commence to run from 8-7-1953 the date upon which an order was made by the High court dismissing the appeal or the plaintiff from the order rejecting his Miscellaneous Application. No. 272 of 1949.

(4) The question of construction of Art. 182, clause (2) has been the subject matter of considerable discussion in several cases. But in my view all doubts upon the question of construction of the word appeal occuring in clause (2) of Art 182, have been set at rest by the decision of the Privy Council in Nagendranath Dey v. Suresh Chandra Dey, that wqas a case in which a mortgage decree was passed on 24-6-1920. One of the decree holder, a mand named Madan Mohan , was disatisfied with the order of the learned subordinate Judge disallowing his claim to be substituted by any one of the decree holders whose rights he (Madan Mohan) Claimed to have acquired. Madan Mohan appealed to the High court and his appeal purported to be against the order of the subordinate judge dated 26-6-1920 rejecting his claim against his co plaintiff. It may be to the High court, he did not join the judgment debtors. In other words, the quarrel in the appeal which was filed in the High court by Madan Mohan was a quarrel bnetween the two plaintiffs, Madan Mohan stated in his appeal that no decree had been drawn up in the case and therefore he was appealling against the order of the subordinate judge. That however, was not true. The appeal, though irregular in form and insufficiently in execution of the orginal decree that was passed by the subordinate Judge, a question arose whether the terminus a quo was the date of the decision of the irregular appeal or the date of the orginal decree in suit, namely, 24-6-1920 Upon the matter going before their Lordships of the Privy Council, their Lordships observed:

The question must be decided upon the plain words of the article. Where there has been an appeal time is to run from the date of the decree of the appeallate 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.

Their Lordships then proceedede to observe

'It is at least in intelligible rule that so long as there is any question sub judice between any of the parites, those affected shall not be compelled to ursue the so often thorny path of execution, which, if the ffinal result is agains tthem, may lead to no advantage.

It is clear therefoe that their Lordships did not read the word appeal in clause (2) of Art. 182. subect to restriction of clauses (1) (3) and (4) of the said article and they were not prepared to import into the word and they were not prepared to import into word appeal any consideration which would narrow down the plain meaning of that word. When their Lordships observed that it was at least an intelligble rule that so long as there was any questiion subjudice between any of the parties, those affected should not be compelled to pursue the so often thorny path of execution which if the final resul was against them might lead to no advantage, it is clear that they did not divorce the connotation of the word appeal from any question which might by sub judice between any of the parties to the litigation. As clause (2) of Art. 182 follows close upon (1) it might perhaps have been more natural to construe the word appeal occuring in clause (2)( so as to mean appeal from the decree or order referred to in clause (1) But this consideration did not weigh with their Lordships of the Privy Couvil when a question arose before them of construing the word appeal in cluase (2) They in terms pointed out that the fixation of the period of limitation cannot always be a natural fixation, but must be to some extent arbitrarry and it might frequently result in hardships either to one party or to the other. It is significant to remember in this context that when the Legislature used the word appeal in clause (2) it did not, in terms say that the appeal was to refer to the decree or order mentioned in clause (1) It is clear that the Legislature did not intend to import any qualification in the connotation of the word appeal when it used that word in clause (2) for instance, qualification that it should be an appeal from the decree that was sought to be executed Following with great respect, the principle laid down by their Lordships of the Privy Council in The principle being that the words used by the Legislature must be construed to mean just what they say, I must uphold the contention of the learned Advocate Mr. Rege appearing for the appellant plaintiff that the starting point of limitation in this case would be the date 8-7-1953 upon which date the High court dismissed the plaintiffs appeal which was filed by him from an order rejecting his miscellaneous application No. 272 of 1949, which was made for setting aside the award decree.

(5) In Bhawanipore Banking corporation Ltd. v. Gouri Shankar, : [1950]1SCR25 a preliminary decree on a mortgage was passed exparte on 21-98-1940. The judgment debtor made an application under S. 36 of the Bengal Money lenders Act for re opening the decree and the application was dismissed for default of appearance on 20-12-1941 and an application under O. IX R. 9, Civil Procedure Code, For resotration of this application was also dismissed on 1-6-1942. In this meanwhile on 22-12-1941 a final decree was passed. The judment debtor preferred an appeal was from the order Procedure Code and this appeal was dimissed for non prosecution on 3-7-1944. On 9-4-1945. the decree holder applied for the execution of the decree. It was held by the supreme court that the words where there has been an apppeal in clause (2) of Art 182 must be read with the words for the execution of a decree or order, in the 1st column of the article and therefore the fact that there was an appeal from the order dismissing the application under O. IX R. o, made in connection with the proceeding under s. 36 of the Money lenders Act could not give rise to a fresh starting point of limitationunder Art. 182. clause (2) In the body of the judgment delivered by their lordships they observed:

However broadly we may construe it (their Lordships were referring to the expression where there has been an appeal occurring in clause (2) of Art 182) it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execustion.

In must follow by necessary implication from these observations that if an appeal is made from and order which has a direct or immdiate connection with the decree under execution that appeal would be covered by the expression appeal in clause (2) of Art, 182. Now, in the present case it could not be disputed that the order which was passed in Miscellaneous application No. 272 of 1949, which was filed by the plaintiff, had a direct and immediate connection with the award decree. The award decree was passed for the amount of Rs. 4,000/- It is clear that the plaintiffs prayer in Miscellaneous application No. 272 of 1949 was in respect of the award decree which was passed only for Rs. 4,000/- and odd. The plaintiffs grievance in his Miscellaneous Application No. 272 of 1949 was in respect was directly and immediately connected with the decree under execution, namely the award decree, which is sought to be executed in the present darkhast filed by the plaintiff on 11-11-1954. From the order rejecting the plaintiffs Miscellaneous application No. 2773 of 1949 there was an appeal in the High Court and that appeal was dismissed by the High court on 8-7-1953. It is clear therefore that the order in appeal made by the High court was also an order which had a direct and immediate connection with the decree sought to be executed in the present darkhast filed by the plaintiff on 11-11-1954 In these circumstances the present case would be covered, b necessary implication, be their lordships obervations.

However broadly we may construe the expresion where there was been an appeal it cannot be held to cover an appeal from and order which is passed in a collateral proceeding in which has no direct or immediate connection with the decree under execution.

(6) In Nagappa v. Gurushantappa, 35 Bom LR 432 : AIR 1933 Bom 255 the trial court was dealing with a suit for partition. The trial court passed a decree in favour of defendant Nos. 1 and and against defendant No. 3 on 14-12-1923 defendant No. 2 appealed to the High court against the decree and degfendant No. 3 applied to the trial court for review. The trial court reviewed the decree on 15-6-1926. Defendants Nos. 1 and 2 appeaed to the High Court against the order granting review. The High Court dismissed both the appeals on 289-101928. An application to execute the decree was made on 2nd September 1929. It was held by a Division Bench of this court cosisting of Mr. Justice Patkar and Mr. Justice Barlee that the execution application dated 2-9-1829 was within time, as under Art 182 clause (2) of the limiatation Act, 1908 the period of Limitation commenced to run from 29-10-1928. i.e, the date of the decree or order passed by the High court, in appeal No. 65 of 1926. It may be noted that the appeal nO.65 of 1926 which was decided by the High court was an appeal made by defendants Nos. 1 and 2 against the order of the court below granting the review application. As I have just mentionedf the High court held that the limitation would begin to run from the date of the order made by the High court in appeal No. 65 of 1926. This decision is directly contrary to the contention pressed before me by the learned advocate Mr. Samnnt for respondent No. 1 that the word appeal in clause (2) of art. 182 must relate to an appeal from a decree or order sought to be executed. In the body of the judgment delivered by Mre. Justice Barlee in Nagappas case, 35 Bom LR 432 : AIR 1933 Bom 255 Mr. Justice Barlee pointed out that the question which had arisen for consideration was as to the plain meaning of the words used in clause (2) of Art. 182. must be an appeal from an original decree. Mr. Justice Barlee followed the principle laid down by the Privy council in that nothing must be added to the words of the Article so as to narrow down the connotation of the word appeal used in clause (2) of Art. 182.

(7) In Narayan v. Radhabai 38 Bom LR 215 : AIR 1938 Bom 162 also it was held by this court that clause (2) of Art. 182 would cover an appeal from an order granting a review and that the word appeal was not confined to an appeal from a decree or order sought to be executed.

(8) In may be noted that in this case it was contended by Mr. Adarkar, who appeared for the appellant, that an appeal from an order granting a review was no an appeal which would fall within clause (2) of Art. 182. Mr. Justice Barlee who decided the came, was bound by the decision of this court in nagappas case 35 Bom LR 432 : AIR 1933 Bom 255 I have already pointed out above that in Nagappas case 85 Bom LR 432 : AIR Bom 255 it was decided that clause (2) of Art. 182 did not refer exclusively to the appeals from decrees that were to be executed Mr. Justice Barlee pointed out that the decisions in Nagappas case 35 Bom LR 4232 : AIR 1933 Bom 255 was based on the Privy council case of and held that the question must be decided upon the plain words of the article and that where there had been an appeal of any sort, time was to run from the date of the decres of the appeallate court.

(9) In Narmadabai Narayanshet v. Hidayatalli 50 Bom LR 696 : AIR 1949 Bom 115, also it was held by Mr. Justice Gajendragadkar that an appeal preferred by the defendant against the order dismissing his application to set aside an ex parte decree passed against him fell within the word 'appeal' in Clause 2 of Art. 182 and that therefore in such a case limitation would commence to run from the date of the final decree or order of the appellate Court. A contention similar to the one advanced by Mr. Samant in the present case was advanced in that case also. But it was negatived by Mr. Justice Gajendragadkar and he observed. 'It seems to me that in view of the Privy Council decision in Nagendra's case and in view of the later decision of this Court in Nagappa's case 35 Bom LR 42 : AIR 1933 Bom 255 it must be held that the word 'appeal' in column 3 of Article 182 includes an appeal against an order rejecting the defendant's application for setting aside the ex parte decree. It is clear that Mr. Justice Gajendragadkar did not accept the contention that the word 'appeal' as used in Clause (2) of Art. 182 was restricted to an appeal from the decree that was sought to be executed.

(10) On behalf of the first respondent my attention is invited by Mr. Samant to a decision of this Court in Mahadeo Bhimashankar v. Fatuniya 50 Bom LR 221 : AIR 1948 Bom 337. In this case the plaintiff obtained a preliminary mortgage decree on 27-6-1933. The defendant preferred an appeal from that decree, and the Appellate Court made an order on 16-11-1935, declaring the appeal to have abtated. The preliminary decree was made final on 7-3-1935. On 30-3-1935 the plaintiff filed a darkhast to execute the final decree and it was disposed of on 14-9-1935. On 16-11-1938 the assignees of the decree filed another darkhast to execute the decree. The defendant's heirs contended that this darkhast was not filed within 3 years from the previous darkhast and that therefore it was barred by limitation. The assignees relying on Article 182 clause (2), submitted that the darkhast was filed in time as it was within three years from 16-11-1935, on which date the court declared that the appeal had abated. It was observed by a Division Bench of this Court consisting of Mr. Justice Bavdekar and Mr. Justice Dixit that as there was no appeal from the final decree which was the decree sought to be executed, the 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 and that therefore the darkfast was barred by limitation. Now, with respect, it must be pointed out that the view taken by the Court in this case was opposed to the principle laid down by their Lordships of the Privy Council in Nagendra nath dey's case and it was also not in conformity withe the view taken by a division Bench of this Court in 35 Bom LR 432 : AIR 1933 Bom 255. As I have mentioned above, the principle laid down by the Privy Council in Nagendra's case is that the connotation of the word 'appeal' as used in clause (2) of Article 182 is not to be restricted or confined to an appeal from a decfree or order which is sought to be excuted. With this principle the decision of this Court in Mahadeo Bhimashankar's case 50 Bom LR 221 : AIR 1948 Bom 337 is not in conformity and with great respect I am unable to follow the decision in Mahadeo Bhimashankar's case 50 Bom LR 221 : AIR 1948 Bom 337 had succeeded in his appeal to the High Court from the preliminary decree, it would, in the words of their Lordships of the Privey Council, have been of the advantage at all to him to be compelled to pursue 'the thorny path of execution of the final decree.' In my view therefore-and I am saying this with great respect the case of 50 Bom LR 221 : AIR 1948 Bom 337 conflicting as ti did with the dictum of the Privy Council in Nagendra Nath Dey's case was not correctly decided.

(11) The next case to which my attention is invited by Mr. Samant appearing for the first respondent is the Full Bench case of the Patna High Court Rameshwar Prasad v. Parmeshwar Prasad, : AIR1951Pat1 . The learned Judges of the Patna High Court observed in this case that the word 'appeal' in column 3 of clause (2) of Article 182 of the Indian limitation Act did not include 'an appeal preferred from an order refusing to set aside an ex parte preliminary decree in a suit for partition.' They said that the word 'appeal' in clause (2) of Art. 182 meant an appeal only from the decree or order sought to be executed. It is clear that the learned Judges of the Patna High Court, in coming to the decision to which they came in this case, put a narrow and restricted meaning on the word 'appeal' which Their Lordships of the Privy Council in terms discouraged in Nagendra Nath Dey's case, .

(12) In Sivaramachari v. Anjaneya, : AIR1951Mad962 which is a Full Bench case of the Madras High Court, it was held by the learned Judges that the word 'appeal' in clause (2) of Art. 182. which is no doubt a general word, must bear a meaning restricted by its context and it means 'an appeal from a decree or order of the nature mentioned in cls. (1), (3) and (4), that is to say, an appeal from the original decree or order, an appeal from a decree following a review of judgment and an appeal from an amended decree.' The learned Judges said : 'the true test is that the decree of the appellate court oin the appeal must be the decree which is sought to be executed.' Once again I may point out, with great respect, that this restriction which was put upon the meaning of the word 'appeal' occurring in clause (2) of Art. 182, namely, that it must be read in the context of cls. (1), (3) and (4) of Article 182, was a restriction which was discouraged by the Privy Council in Nagendra Nath Dey's case when their Lorships observed that the words of the article were plain and without any qualification either as to the character of the appeal or as to the parties to it.

(13) In Jacinto v. Fernandez 41 Bom Lr 921 : AIR 1939 Bom 454 it was held by a Division Bench of this Court consisting of the learned Chief Justice and Mr. Justice Wadia : '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 defree, though made in the suit.' In that case there did not arise for consideration a position analogous to the position in the present case. In the present case an appeal was made by the appellant from an order refusing to set aside the award decree and this feature of the case was absent in Jacinto's case 41 Bom LR 921 : AIR 1939 Bom 454 would not be attrated by the facts of the present case.

(14) In Fakirchand v. Daiba Charan : AIR1927Cal904 it was held : where an appeal has been preferred from a decree the period of limitation commences from the date of the decree on appeal. 'Decree on appeal' means decree on appeal from the decree to obtain execution of which the application is made.' It was further held : 'An application to set aside a decree does not keep the decree open and is not to be regarded as an appeal from the decree itself.' This decision would be of no assistance to Mr. Samant for the simple reason that the question of construction of clause (2) of Art. 182 did not arise in that case.

(15) It is scarcely necessary to refer to the case of Jivaji v. Ramchandra ILR 16 Bom 123, since subsequent to that decision there has been a decision of the Privy Council in Nagendra nath Dey's case in which the principle laid down was that the expression 'appeal' used in clause (2) of Art. 182 was to be given its plain meaning and that it was not to be restricted to an appeal from an order or decree sought to be executed.

(16) For the reasons stated above I must accept the contention of Mr. Rege pressed before me for the appellant-plaintiff that the starting point of limitation in the present case would be the date 8th July 1953 on which date the High Court dismissed the appeal filed by the plaintiff from an order rejecting his application No. 272 of 1949. As the Limitation would commence from 8-7-1953 the present darkhast filed by the plaintiff on 11-11-1954 ato execute the award decree would be in time. I accordingly set aside the order made by the learned Judge below, allow the appeal and remit the darkhast to the Court below for disposal according to law. So far as the costs of the appeal are concerned, the first respondent will bear his own costs and will also pay the costs of the appellant.

(17) Appeal allowed.


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