Skip to content


imam Ali and ors. Vs. Dasaundhi Ram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1875)ILR1All508
Appellantimam Ali and ors.
RespondentDasaundhi Ram
Excerpt:
execution of decree - special appeal--'final decree of appellate court'--limitation--act ix of 1871 (indian limitation act), schedule ii, article 167. - .....view is erroneous. where there has been an appeal, the limitation will run from the date of the final decree of the appellate court. we hold this to be the decree of the high court and not that of the judge, the 7th june 1873; the former was passed after the judge's decree of the 7th june 1873, and must be held to be the final decree of the appellate court and to have finally determined the entire claim. the lower courts seem to consider that there may be several final decrees of an appellate court in one and the same case, giving separate periods of limitation for separate portions of a claim in one and the same suit, and they refer to the high court's decree as final on the point of possession and so affording a period of limitation for that portion, and the judge's decree as final.....
Judgment:

1. The question before us is whether the appellant's decree is incapable of execution by limitation. He sued in the Munsifs Court for possession of certain land and to recover damages. The Munsif decreed possession but dismissed the claim for damages. An appeal was preferred to the Judge, who (28th February 1873), affirmed the decree giving possession and remanded the case, under Section 351 of Act VTII of 1859, for adjudication as to the amount of damages due. An appeal was preferred from the Judge's decision to the High Court on the 23rd May 1873, and was pending till 6th March 1874, when the decision as to possession was modified and the Court did not interfere with the order of remand made by the Judge. In the meantime the Munsif on the 25th April 1873, decreed damages, and an appeal was preferred to the Judge who decided it on the 7th June 1873. It will be seen that the Judge's order is prior to the date of the High Court's decision in the appeal before them. Appellant now takes out execution of the Judge's decree of the 7th June 1873. If the three years' limitation is to run from the former date, the application is barred, and this is the view taken by the lower Courts. But this view is erroneous. Where there has been an appeal, the limitation will run from the date of the final decree of the Appellate Court. We hold this to be the decree of the High Court and not that of the Judge, the 7th June 1873; the former was passed after the Judge's decree of the 7th June 1873, and must be held to be the final decree of the Appellate Court and to have finally determined the entire claim. The lower Courts seem to consider that there may be several final decrees of an Appellate Court in one and the same case, giving separate periods of limitation for separate portions of a claim in one and the same suit, and they refer to the High Court's decree as final on the point of possession and so affording a period of limitation for that portion, and the Judge's decree as final on the point of damages and affording another period of limitation for that portion of the claim, but this view is erroneous, both decrees cannot be final within the moaning of the limitation law. We reverse the order of the lower Court and remand the case for execution in duo course. Costs to abide the result.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //