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Kairrunisa Begum Vs. Pingal Venkatarama Reddy - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAndhra Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 4 of 1958
Judge
Reported inAIR1960AP456
ActsLimitation Act, 1908 - Schedule - Article 182(2)
AppellantKairrunisa Begum
RespondentPingal Venkatarama Reddy
Appellant AdvocateD. Suryaprakasa Rao and ;A. Satyanarayana, Advs.
Respondent AdvocateV. Madhava Reddy, Adv.
DispositionAppeal dismissed
Excerpt:
.....strictly - held, present case barred by limitation - dismissal of appeal for default or non prosecution is final judicial order within article 182 (2). - all india services act, 1951.sections 8 & 11 & a.p. buildings (lease, rent and eviction) control rules, 1961, rule 5: [v.v.s. rao, g. yethirajulu & g. bhavani prasad, jj] refusal by landlord to receive rent - deposit of rent in court - held, a tenant has the option to take recourse to section 8 in case of refusal or evasion by landlord to receive rent and if landlord were to not name a bank or refuse even the money order of rent, the tenant can deposit the rent in accordance with sub-rules (1) to (3) of rule 5. the notice to person entitled to rent and proper maintenance of accounts of such deposits under sub-rules (4) and..........of the appeal. 3. the decree-holder applied earlier to the court of first instance to pass a final decree in terms of the preliminary decree and the final decree was prepared on 22-10-1947. but the decree could not be drawn up till the 28-10-1952 as the records were despatched to the judicial committee and were not received back by the trial court till that date. the execution petition giving rise to this appeal was filed on the 18th february, 1953. this was resisted on the ground that it was baired by limitation in that it was not filed within three years of the passing of the final order, namely, 22-10-1947. this objection was overruled by the courts below as also by our learned brother ansari j., with the result that the respondent was permit-led to proceed with the execution......
Judgment:

Chandra Reddy, C.J.

1. This appeal is against the judgment of our learned brother Ansari J., who granted leave under Clause 15 of the Letters Patent. The learned Judge dismissed a Second appeal filed by the appellant against the decree of the Chief Judge, City Civil Court in A. S. No. 53/5 of 1953-54 preferred against the decree of the Court of the 3rd Judge in O. S. No. 435/3 of 1952-53.

2. The facts of this case are quite Simple and are undisputed. The respondent obtained a preliminary decree for sale of the properties hypothecated to him by the appellant. Ultimately, this was confirmed by the erstwhile High Court of Hyderabad on 19-10-1944. The appellant took it in appeal to the Hyderabad Judicial Committee. Pending the appeal the Constitution was inaugurated and, consequently, this appeal was transferred to the Supreme Court. On the 7th of December, 1950, the appeal was dismissed for non-prosecution in that neither the appellant nor his counsel was present at the time of the hearing of the appeal.

3. The decree-holder applied earlier to the Court of first instance to pass a final decree in terms of the preliminary decree and the final decree was prepared on 22-10-1947. But the decree could not be drawn up till the 28-10-1952 as the records were despatched to the Judicial Committee and were not received back by the trial court till that date. The execution petition giving rise to this appeal was filed on the 18th February, 1953. This was resisted on the ground that it was baired by limitation in that it was not filed within three years of the passing of the final order, namely, 22-10-1947. This objection was overruled by the courts below as also by our learned brother Ansari J., with the result that the respondent was permit-led to proceed with the execution. This appeal is against the final judgment of Ansari J.

4. The learned Counsel for the appellant canvasses the view of Ansari J., that the E. P. was not barred by limitation as it was filed within three years of the dismissal of the appeal by the Supreme Court on 7-12-1950. The contention advanced by Sri Surya Prakasa Rao is that the order of the Supreme Court dismissing the appeal for non-prosecntion is not a judicial one. and therefore the respondent could not derive any benefit from Article 182(2) of the Limitation Act and he cited two decisions of the Privy Council in support of this submission of his.

5. Before we refer to the cases cited by him, it is useful to look at the terms of Article 182 in so far as it has a bearing on this enquiry.

182: Forthe execution of a decree or order of, any Civil Court not pro vided for byArt. 183 or by S. 48 of the Code or Civil Procedure, 1908 (V of 1908).

Three years1.The date of the decree or order

2.Wherethere has been an appeal, the date of the final decree or order of theappellate Court or the withdrawal of the appeal.'

6. It is immediately plain that, if an appeal has been preferred against the decree of an appellate court, the period of limitation prescribed by that Article runs from the date of the final decree or order of the appellate court or the withdrawal of the appeal. Indisputably, an appeal was filed in this case. The only question, therefore, for consideration is whether the dismissal of the appeal for default or for non-prosecution would come within the terms of 'the date of the final decree or order of the appellate Court'.

7. We will now notice the two decisions of the Privy Council relied on by Sri Surya Prakasa Rao, namely Batuk Nath v. Munni Dei, 41 Ind App 104: ILR 36 All 284: (AIR 1914 PC 65) and Abdul Majid v. Jawahir Lal, ILR 36 All 350: (AIR 1914 PC 66). In the first of them, lenve to appeal to his Majesty in Council was granted under Rule 5 of the Order in Council. As no effective steps were taken for prosecuting the appeal, it stood dismissed without further orders. The question before the Board in that case was whether under Article 179 Sehedule 2, Limitation Act of 1877, which corresponds to Article 182 of the Act of 1903 the assignee of the original decree-holder could claim three years from the date of the dismissal. Sir John Edge, who delivered the opinion of the Board, held that he could not pet the benefit of Article 179 and gave his reasons in the following words:

'There was however no order of His Majesty in Council dismissing the appeal, nor was it neces-sary that any such order should be made in the appeal. Under Rule 5 of the order in Council of 13-6-1853, the appellant or his agent not having taken effectual steps for the prosecution of the appeal, the appeal stood dismissed without further order.'

It is thus seen that the appeal automatically stood dismissed without any judicial order for not taking the requisite steps. That case cannot, therefore, furnish any analogy here:

8. In the second case, leave was obtained to appeal to the Judicial Committee of the Privy Council but the appellant did not prosecute it and it was dismissed for want of prosecution. It is argued by Sri Surya Prakasa Rao that the appeal was dismissed by His Majesty in Council for want of prosecution on that date and, therefore, the principle enunciated by the Privy Council that the dismissal of an appeal; for want of prosecution is not a judicial order so as to bring it within the perview of Article 182 of the Limitation Act, would apply to this case also. We do not think that this argument is a substantial one. In the cited case, it does not appear whether the dismissal was made under an Order in Council. Be that as it may. it is clear from the judgment of their Lordships that failure to comply with the conditions under which an appeal was open to him had the same effect as though the appellant had not appealed at all; in other words, it was equated to his not having filed an appeal at all.

9. We may here point out that on another occasion the Privy Council had to consider the effect of an abatement of an appeal on Article 182(2). Their Lordships decided that an order made holding that the appeal has abated, gave a fresh starting period of limitation. While dealing with that controversy, their Lordships referred to the earlier cases of the Board and remarked that the effect of the second decision was the same as that of the first; in other words, the proposition enunciated in ILR 36 All 350: (AIR 1914 PC 66) did not in any way differ from that in the earlier case, i. e., that the dismissal for non-compliance had the same effect as a case where it automatically stood dismissed for not taking any steps for the prosecution of the appeal. In our opinion, the order of dis-missal for default is a judicial order and should be regarded as a final order made in an appeal within the sweep of Article 182(2) of the Limitation Act.

10. We may now refer to another pronounce-ment of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 P. C. 165, where their Lordships had to construe Article 182. The point for consideration there was whether an execution petition filed within three years of the disposal of an appeal, which was found to be incompetent, could be saved by Article 182(2) of the Limitation Act Their Lordships held that notwithstanding that the appeal was irregular or incompetent it was on appeal within the acceptation of the term 'appeal'. We think that the doctrine of the above case applies with equal force to the case of dismissal for default. In our considered opinion, the principle of that case governs this case. Their Lordships, while interpreting the words 'where there has been an appeal', observed thus:

'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 ..... 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.'

11. The last portion of the passage furnishes an effective answer to the argument of Sri Surya Prakasa Rao that it is a great hardship for the judgment-debtor to execute the decree after several years, That apart, in construing the provisions of the Limitation Act, equitable considerations are out of place and 'the strict grammatical meaning of the words is the only safe guide.' In out opinion, the language of Article 182(2) is unambiguous and is incapable of yielding any meaning other than that put upon it by us. It is not susceptible of the other construction sought to be placed by Sri Surya Prakasa Rao upon it.

12. In this view of ours, we are supported by judicial precedents. In Ram Kumar v. Rudra Dutt, : AIR1951All493 , it was held that an order dismissing an appeal for want of prosecution is a judicial order disposing of the appeal. Their Lordships of the Allahabad did refer to the two Privy Council rulings and distinguished them on the ground mentioned therein.

13. to the same effect is the judgment of the Rajasthan High Court in Mt. Norati v. Abhai Karan, . Although Anis Imam v. Champamani Bibi, : AIR1957Pat373 , was con-cerned only with the withdrawal of an appeal, there is not much difference in principle between the withdrawal and dismissal of it for default or tor want of prosecution. If we may say so with respect, these three cases lay down the law correctly and they are not in any way inconsistent with the proposition enunciated by their Lordships of the Privy Council in 41 Ind App 104: ILR 36 All 284: (AIR 1914 PC 65) and ILR 36 All 350: (AIR 1914 PC 66) as urged by Sri Surya Prakasa Rao. The pronouncements of the Privy Council are reconcilable with the view taken by us, which is the only one consistent with the plain meaning of the words in Article 182(2) of the Limitation Act.

14. We have no doubt that the judgment under appeal is unassailable and the appeal has to be dismissed with costs.


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