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Thodkamalla Venkata Laxmi Narayanarao Vs. Kishanlal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 89 of 1958
Judge
Reported inAIR1961AP326
ActsCode of Civil Procedure (CPC) , 1908 - Sections 48; Limitation Act, 1908 - Schedule - Article 182
AppellantThodkamalla Venkata Laxmi Narayanarao
RespondentKishanlal
Appellant AdvocateVenkata Rao, Adv. for ;K.B. Swamigupta, Adv.
Respondent AdvocateD.M. Deshmukh, ;M.J. Reddy and ;K.V. Sharma, Advs.
DispositionAppeal allowed
Excerpt:
.....issue whether in execution petition filed by appellant period of limitation will be computed from date of original decree or from date of decree passed by appellate court - held, appellant not hit by section 48 since there has been appeal within article 182 - held, competent to pursue execution petition. - - their lordships further observed that in construing such provisions, equitable considerations were' out of place and strict grammatical meaning of the words was the only safe guide. it is a well accepted principle of procedural law that once there has been an appeal the original decree is set at large and even when the original decree is confirmed in appeal, the final decree is the decree of the appellate court, of course when there has been a modification, undoubtedly the..........petition filed by the appellant the period of limitation will be computed from the date of the original decree or from the date of the decree passed by the appellate court.2. briefly, the relevant facts for the appreciation of the arguments are as under: the father of the appellant filed a suit in the city civil court against four defendants and obtained a money decree on 10th shahrewar, 1353 f. (1944 ad) against the 1st defendant; the suit being dismissed against the other defendants. the plaintiff went in appeal to the high court with the prayer that the suit should be decreed against all the defendants; the 1st defendant (respondent herein) was also made a respondent. the appeal was dismissed on 13-11-1956.thereupon the plaintiff filed an execution petition on 22-8-1957. it was.....
Judgment:

Sharfuddin Ahmed, J.

1. The short question that requires determination in this Miscellaneous Appeal is whether in the Execution petition filed by the appellant the period of limitation will be computed from the date of the original decree or from the date of the decree passed by the appellate court.

2. Briefly, the relevant facts for the appreciation of the arguments are as under: The father of the appellant filed a suit in the City Civil Court against four defendants and obtained a money decree on 10th Shahrewar, 1353 F. (1944 AD) against the 1st defendant; the suit being dismissed against the other defendants. The plaintiff went in appeal to the High Court with the prayer that the suit should be decreed against all the defendants; the 1st defendant (respondent herein) was also made a respondent. The appeal was dismissed on 13-11-1956.

Thereupon the plaintiff filed an execution petition on 22-8-1957. It was resisted by the Judgment-debtor (respondent herein) as being beyond time and, therefore, inexecutable. The learned City Civil Judge following the decision in Kalyanchand v. Bhogilal, AIR 1923 Bom 400 came- to the conclusion that the execution petition was barred! by limitation and accordingly dismissed the same. The appeal is against this order:

3. It is conceded that if the period of time is computed from the date of the original decree viz. 10th Shahrewar, 1353 F. (1944), the execution petition filed on 22-8-1957 is beyond time under Section 48 C.P.C. which lays down that:

'Where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after' the expiration of twelve years from - (a) the date of the decree sought to be executed ......'

But the contention is that as the appellant has preferred an appeal against the other defendants, against whom the suit had been dismissed and the respondent herein was also a party to the appeal, the time for execution will start to run from the date of the dismissal of the appeal by the High Court i.e., 13-11-1956.

4. The learned advocate for the respondent on the other hand has urged that as no relief was sought against the 1st defendant and the 1st defendant had not chosen to file an appeal, the period of limitation could not be saved merely by the fact that the respondent was also a parly to the appeal. This view has found favour with the trial court. It is for consideration as to how far this order is sustainable.

This takes us to the consideration of the relevant articles of the Indian Limitation Act (IX of 1908). Article 182 lays down that the period for the execution of a decree or order of any civil court, not provided for by Article 183 or by Section 48 Civil Procedure Code, is three years from the data of the decree or order, or where there has been an appeal, the date of the final decree or order of the appellate court, or the withdrawal or the appeal, etc.

5. The contention is that so far as the 1st defendant was concerned, there has been no appeal within the meaning of the provisions of this article, and as such the date of the original decree should be taken into consideration. In other words, the gist of the argument is that as the original decree, so far as the 1st defendant is concerned, has not been superseded or modified by the appellate court, the period of three years from the date of the final decree by the High Court) will not be available to the appellant.

The case of AIR 1923 Bom 400 does lend support to the proposition, but we do not find ourselves in agreement with this view. The clause 'where there has been an appeal' under Article 182 does not admit of any distinction sought to be brought out in the said ruling with reference to the result of the appeal. On the other hand, the consensus of opinion seems to be that the words 'where there has been an appeal' have to be taken without qualifying them in any way.

6.. In Nagertdranath. De v. Sureshchandra Dey, ILR 60 Cal 1 : (AIR 1932 PC 165) dealing with the construction of Article 182 it has been observed that in their Lordships' opinion there was no warrant for reading into the words 'where there has been an appeal' any qualification either as to the character of the appeal or to the parties to it. Their Lordships further observed that in construing such provisions, equitable considerations were'

out of place and strict grammatical meaning of the words was the only safe guide. The same view was expressed by a Full Bench of the Madras High Court in Rristnama Charter v. Mangammal, ILK 26 Mad 91. The observations of Rajamannar C. J., Sivaramachari v. Anjaneya, : AIR1951Mad962 (FB), bear out the same interpretation in the following terms:

'It is a well accepted principle of procedural law that once there has been an appeal the original decree is set at large and even when the original decree is confirmed in appeal, the final decree is the decree of the appellate court, Of course when there has been a modification, undoubtedly the appellate decree is the only decree which can be executed. When an appeal is withdrawn before hearing, it may not be accurate to say that the appellate court passes another decree. Nevertheless, the enactment gives to the decree-holder the benefit of the period during which the original decree or order was pending in the appellate court. Reading column 1 and Clause 2 of column 3 it seems to me that the final decree or order of the appellate court is the decree or order for the execution of which an application is filed.'.

7. The interpretation of Article 182 came up for consideration before a Division Bench of this High Court in Khairunnisa Begum v. Venkata-rama Reddy, 1960-1 Andh W. R. 461 : (AW 1960 Andh Pra 456), to which one of us was a party. It was in a different contest viz., whether the order of the Court dismissing the appeal on non-prosecution was a judicial order which enabled the party to derive any benefit from Article 182 or the Indian Limitation Act. Dealing with this aspect of the case, the learned Chief Justice followed the pronouncement of the Privy Council in ILR 60 Cal 1 : (AIR 1932 PC 165) and observed that:

'In our opinion, the language of Article 182 (1) is unambiguous and is incapable of yielding any meaning Other than that put upon it by us'.

8. In that view of the matter we are of opinion that the appellant was not hit by the provisions of Section 48 C.P.C. and since there has been an appeal within the meaning of Article 182 of the Indian Limitation Act, he was competent to pursue the execution petition against the respondent The finding of the lower court, therefore, is unsustainable and deserves to be set aside. Appeal allowed with costs.


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