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Narmadabai Narayanshet Shet Vs. Hidayatalli Saheballi - Court Judgment

LegalCrystal Citation
SubjectLimitation;Civil
CourtMumbai
Decided On
Case NumberCivil Revision Application No. 579 of 1946
Judge
Reported in(1948)50BOMLR696
AppellantNarmadabai Narayanshet Shet
RespondentHidayatalli Saheballi
DispositionApplication dismissed
Excerpt:
.....act (ix of 1908), article 182 - ex parte decree-dismissal of application to set aside such decree-appeal against order of dismissal-whether such appeal included in word 'appeal' in column 3 of article 182-civil procedure code (act v of 1908), section 102.;an appeal preferred by a defendant against the order dismissing his application to set aside an ex parte decree passed against him falls within the word 'appeal' in clouse 3 of article 182 of the indian limitation act, 1908; hence, in such a case limitation commences to run from the date of the final decree or order of the appellate court.;jivaji v. bamchandra (1891) i.l.r. 16 bom. 123, treated as overruled.;nagendra nath dey v. suresh chandra dey (1932) i.l.r. 59 i.a. 283 : s.c. 34 bom. l.r. 1065 and nagappa bandappa v...........nature described in section 102, no second appeal would lie from an order made in execution of the decree passed in such a suit unless the value of the suit exceeds rs. 500. the test in such cases is not the nature of the proceedings in execution, but the nature of the suit in which the decree sought to be executed was passed. that being so, the preliminary objection is, i think, well-founded and must be accepted. on behalf of the appellant mr. gokhale has, however, argued that in view of the importance of the question of law which he is raising in this appeal he should be permitted to convert his second appeal into a revisional application. it is clear that the question of law which arises for decision in these proceedings is of considerable importance, and i think it would not be.....
Judgment:

Gajendragadkar, J.

1. This appeal has been preferred by the surety against the order passed by the learned District Judge holding that the darkhast filed against the surety is in time and directing the Court of first instance to proceed with the said darkhast and to dispose of it on the merits in accordance with law.

2. In civil suit No. 475 of 1936 a decree was passed directing defendants Nos. 2 and 3 to pay the plaintiff Rs. 307-8-6 and proportionate costs. Pending the suit certain moveables belonging to defendant No. 3 were attached at the instance of the plaintiff. Thereupon the said defendant applied to raise the attachment (Miscellaneous Application No. 80 of 1936), and the application was allowed on the defendant furnishing security in that behalf. The present appellant stood surety for the said defendant to the extent of Rs. 400. As a result the moveables of defendant No. 3 which had been attached were returned to him. On the date of the hearing of the suit all the defendants remained absent and an ex parte decree was passed in favour of the plaintiff on November 18, 1938. Thereafter defendant No, 3, Mobarilal, filed Miscellaneous Application No. 157 of 1938 on December 29, 1938, for setting aside the ex parte decree and restoring the suit to file. But his application was dismissed on June 19, 1939. Moharilal preferred an appeal against the said order, No. 35 of 1939. But even the said appeal failed and was dismissed on August 23, 1939. The decree-holder has filed the present darkhast application No. 1171 of 1942 seeking to execute the decree against the surety. When notice was issued to the surety under Order XXI, Rule 22, he filed his written statement in which the main contention urged by him against the decree-holder's claim was that the darkhast is barred by limitation. He' has also contended that he had stood surety not for the purpose of the suit, but for the purpose of miscellaneous application No. 80 of 1936, and that the darkhast in which the ex parte decree is sought to be executed cannot be enforced against him. The learned Civil Judge, Junior Division, Yawal, rejected the surety's contention that he had stood surety in application No. 80 of 1936 and was not liable for the decree which was passed in the suit. He, however, held that the darkhast filed by the decree-holder was barred by limitation since it had been filed more than three years after the date of the decree. Accordingly, the decree-holder's darkhast was dismissed with costs. The appeal preferred by the decree-holder in the District Court of East Khandesh, however, succeeded, the learned District Judge having held that the present darkhast was in time. Accordingly, the learned District Judge has sent back the proceedings to the Court of first instance for disposal according to law. It is against this order that the surety has preferred the present second appeal.

3. On behalf of the respondent Mr. P.S. Joshi has raised a preliminary objection. He contends that the decree which is sought to be executed was passed in a suit in which the plaintiff had claimed to recover Rs. 300 due on a hand loan, and he argues that such a suit being of the nature cognizable by Courts of Small Causes, no second appeal would have been competent against the said decree since the amount or subject-matter of the original suit did not exceed Rs. 500. The expression 'suit' used in Section 102 includes execution proceedings with the result that if the suit is of the nature described in Section 102, no second appeal would lie from an order made in execution of the decree passed in such a suit unless the value of the suit exceeds Rs. 500. The test in such cases is not the nature of the proceedings in execution, but the nature of the suit in which the decree sought to be executed was passed. That being so, the preliminary objection is, I think, well-founded and must be accepted. On behalf of the appellant Mr. Gokhale has, however, argued that in view of the importance of the question of law which he is raising in this appeal he should be permitted to convert his second appeal into a revisional application. It is clear that the question of law which arises for decision in these proceedings is of considerable importance, and I think it would not be improper to deal with the said point after allowing the appellant to convert his second appeal into a revisional application.

4. The material facts in this case are not in dispute. It is obvious that if the period of limitation is held to have started against the decree-holder from the date of the decree sought to be executed his present darkhast is beyond time. It is likewise clear that if the said period is deemed to have commenced from the date of the final decision of the appeal preferred by the defendant against the order passed by the learned Judge dismissing his application for setting aside the ex parte decree, the present darkhast would be in time. Thus the question which arises for decision is whether an appeal preferred by a defendant against the order dismissing his application to set aside the ex parte decree passed against him falls within sub-paragraph (2) of column 3 of Article 182 of the Indian Limitation Act. If it does, limitation must be deemed to commence from the date of the final decree or order of the appellate Court. On this point there is a decision of this Court in Jivaji v. Ramchandra I.L.R.(1891) 16 Bom. 123 which supports the judgment-debtor's plea. The facts giving rise to the said appeal were substantially similar. An ex parte decree had been passed against the defendant in 1886, whereupon an application was made by the defendant to have the said decree set aside. The said application was dismissed and the appeal preferred by the defendant against the said order was rejected in March 1887. The decree-holder presented a darkhast for execution of the ex parte decree in 1889. It was held that the darkhast was time-barred on the ground that limitation could not be deemed to commence from the date of the appellate Court's decision in the appeal preferred by the defendant. Dealing with the expression 'the date of the final decree or order of the appellate Court' in Clause 2 of Article 179 as it then stood it was observed (p. 128):

But the appeal referred to in that clause is clearly, as appears from the context, an appea from the decree or order sought to be executed-Sheo Prasad v. Anrudh Singh I.L.R.(1879) All. 273 .

Since the appeal made by the defendant was an appeal not from the decree, but from the order refusing to set it aside, it was held that the decree-holder could not rely upon the date of the appellate order so as to bring his darkhast in time. The decision in Lutful Huq v. Sumbhudin Pattuck I.L.R(1881) . Cal. 248 which had taken a contrary view, is dissented from on the ground that 'the infructuous efforts of the defendant to set aside the plaintiff's decree cannot have the effect of extending the period within which the plaintiff was allowed by law to execute it.' In Fakir Chand Mandal v. Daiba Charan Parni I.L.R.(1927) Cal. 1052 the Calcutta High Court took the same view and held that 'Decree on appeal' means decree on appeal from the decree to obtain execution of which the application is made, and that 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. In this case the learned Judges explained the decision in Lutful Huq v. Sumbhudin Pattuck and expressed their dissent from it. The decision in Jivaji's case was cited before the lower appellate Court; but he was inclined to hold that in view of the decision of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey 34 Bom. L.R. 1065 the authority of the said decision is shaken. That is why he purported to follow the Privy Council decision and found that the darkhast was in time. It is, therefore, necessary to examine whether as a result of the decision of the Privy Council in Nagendra's case it can be held that the decision in Jivaji's case is no longer good law.

5. In Nagendra's case, on June 24, 1920, the Subordinate Judge had delivered his judgment disallowing the claim of one of the parties before him, viz. Madan Mohan, and a final decree was passed for sale of the mortgaged properties that had come to the share of the remaining six judgment-debtors. 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 he alleged that no decree had been drawn up. The point raised by him in his appeal was confined to the decision against him in respect of the assignment, and he joined as parties to the appeal only the other decree-holders and not the judgment-debtors. In fact a decree had been drawn up and the statement made by the appellant Madan Mohan that he was making an appeal against an 'order' on the ground that no decree had been drawn up by the Subordinate Judge was obviously false. At the hearing of the appeal objection was taken to the form of the appeal and the appellant's request for amendment was refused, with the result that the appeal was dismissed both on the ground of irregularity and upon the merits. This dismissal was embodied in a decree of the High Court on August 24, 1922. On October 3, 1928, the decree-holders presented an application to the Subordinate Judge for execution of the decree by sale of the mortgaged properties. The decree holders' claim was resisted by some of the judgment-debtors on the ground that it was barred by article 182. On their behalf it was contended that the appeal preferred by Madan Mohan was irregular in form and that to the said appeal they had not been impleaded. It was, therefore, contended that the period of limitation for the purpose of execution of the decree must be deemed to have commenced in 1920 when the Subordinate Judge passed a final decree, and not from the decree passed by the High Court in Madan Mohan's appeal. This plea had not been accepted by the learned Judge in execution proceedings. But the judgment-debtors preferred an appeal to the High Court and the High Court allowed their appeal on the ground that since Madan Mohan's appeal did not imperil the whole decree in question, the terminus a quo was the date of the Subordinate Judge's decree and that the application was consequently barred by article 182 of the Limitation Act. The same contention was urged before the Privy Council in three forms. It was contended that Madan Mohan's appeal was merely an abortive attempt to appeal and not an appeal all, that the appeal in order to save limitation under Clause 2 of Article 182 must be one to which the persons affected were parties and that it must also be one in which the whole decree was imperilled. All these contentions were negatived by the Privy Council and it was held by them that the decree-holder's application for execution was in time on the ground that the appeal preferred by Madan Mohan was an appeal falling under Clause 2 in column 3 of Article 182. As such, limitation under the said article would start only from the date of the final decree of the appellate Court in the said appeal. Their Lordships referred to the fact that there is no definition of 'appeal' in the Code of Civil Procedure and observed (p. 287):

but their Lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent.

Several decisions of the Indian High Courts were cited before the Privy Council, but their Lordships did not think it necessary to discuss 'these varying authorities in detail.' They took the view that 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 appellate Court. It was held (p. 288):

There is.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 their Lordships took the view that 'in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is...the only safeguide.' It was further observed (p. 288):

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....

It is quite true that the decision in Jivaji's case was not cited before the Privy Council and in terms has not been overruled by them. Besides, the point which arose before the Privy Council was somewhat different in the sense that the appeal in question in the said case had not been filed against an order dismissing the defendant's application to set aside an ex parte decree. But their Lordships examined the denotation of the word 'appeal' in the context and have definitely held that the said word must include any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, and they have also held 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.' In view of this clear statement of the position it is, I think, difficult to hold that the view taken by this Court in Jivaji's case can be regarded as authoritative any longer. It is obvious that if the appeal preferred by the debtor in the present case had succeeded, the ex parte decree passed by the trial Court would have been set aside and the suit would have been restored to file and remanded for trial on the merits. Indeed, the Privy Council did not think it necessary to consider the several decisions of the Indian High Courts and they based their decision upon what was regarded by them to be the effect of the plain words of the article. That being so, it seems to me that Courts in India are bound by the view thus expressed by the Privy Council, though the facts on which the point arose for decision in that particular case were not indentical with those in the present case. It is well-settled that even the obiter of the Privy Council are binding upon the Indian Courts and must be respected : vide Shrinivas Sarjerav v. Balwant Venkatesh 15 Bom. L.R. 533 Nagappa Balappa v. Bamchandra (1945) 48 Bom. L.R. 225 Rama Appa v. Tippaya Appaya : AIR1943Bom95 , Shri Nath Sah v. Official Liquidator, Benares Bank [1941] All. 153 Jogendra Narayan Dhar v. Asltar Ulla [1937] 1 Cal. 455. That being so, I think it must be held that the decision in Jivaji's case can no longer be regarded as good law.

6. In this connection it may be relevant to refer to another decision of this Court, viz. in Nagappa Bandappa v. Gurushantappa Shankrappa (35 Bom. L.R. 432. In that case a decree had been passed in 1925 and an appeal had been preferred against it. Meanwhile the defendant had applied for a review of the decree in March, 1926, and in July of the same year the review application was allowed and the amount under the decree was reduced. An appeal was preferred against the order granting the review application, but no appeal had been filed against the decree which had been drawn in pursuance of the order granting the review. Eventually the appeal against the original decree as well as that against the order granting review were dismissed as incompetent. In August 1929 the decree-holders having assigned their rights, the assignee applied in September, 1929, for a transfer of the decree to another Court for execution. The judgment-debtor opposed the decree-holder's claim on the ground that the darkhast was barred by limitation since it had been filed more than three years from July, 1926, when another decree was drawn after the review application was allowed. His plea was accepted by the Court of first instance, but on appeal it was negatived. The decision of the Privy Council in Nagendra's case was strongly relied upon by the decree-holder in support of his contention that the darkhast was in time. While deciding the point Mr. Justice Patkar observed that it was unnecessary to go into the cases cited in the judgment of the lower Court, for he held that the question had to be decided in the light of the Privy Council decision in Nagendra's case. In this case again the facts were somewhat different, and the decision in Jivaji's case was not cited before the Court. But if the test which had been accepted by this Court in Jivaji's case, viz., that the appeal referred to in sub-paragraph (2) of column 3 of Article 182 must be an appeal from the decree or order sought to be executed, had been applied to the facts in Nagappa's case, the answer would certainly have been that the darkhast giving rise to the said appeal was beyond time. There was admittedly no appeal against the decree which had been passed in July, 1926, and it was that decree which was sought to be executed by the decree-holder and not the decree which was passed in 1925. It would thus appear that after case this Court did not construe the word 'appeal' in Article 182 in the narrow sense in which it had been construed in Jivaji's case.

7. A similar question had been raised before the Patna High Court in Firm Dedhraj Lachminarayan v. Bhagwan Das I.L.R(1937) . Pat. 306 . It was held by the Patna High Court that the expression 'where there has been an appeal' in clause (2) does not mean that the appeal must be against the decree in the suit. It also includes an appeal against an order made on an application for rehearing under Order XLI, Rule 21, of the Code. In support of this decision reliance was placed on Nagendra's case, as well as the decision of this Court in Nagappa's case. It may incidentally be mentioned that an earlier decision of the Patna High Court in Rai Brijraj v. Nauratan Lal (1917) 3 P.L.J. 119 where a contrary view had been accepted, was not followed on the ground that it was no longer good law.

8. This same question has been considered by the Madras High Court in Sriramachandra v. Venkateswara [1939] Mad. 252. On facts very similar it has been held by the Madras High Court that the word 'appeal' in Column 3 of Article 182 means and includes '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 the executed. The decision of the Privy Council in Nagendra's case was followed and that of the Patna High Court in Firm Dedhraj Lachminarayan v. Bhagwan Das was referred to with approval. The contrary view expressed by the Calcutta High Court in Fakir Chand Mandal v. Daiba Charan Parni I.L.R(1927) . Cal. 1052 was not followed.

9. 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 it must be held that the word 'appeal' in col. 3 of Article 182 includes an appeal against an order rejecting the defendant's application for setting aside the ex parte decree. That being so, the period of three years prescribed by Article 182 must be deemed to have commenced from the date when the defendant's appeal in question was dismissed. In that case the darkhast is clearly in time.

10. The result is the view taken by the lower appellate Court and the order passed by him are right and must be affirmed. The revisional application accordingly fails and is dismissed with costs.


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