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Abid HusaIn Khan Vs. Bashir Mohammad and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 880 of 1958
Judge
Reported inAIR1962All312
ActsLimitation Act, 1908 - Schedule - Article 182
AppellantAbid HusaIn Khan
RespondentBashir Mohammad and ors.
Appellant AdvocateBashir Ahmad, Adv.
Respondent AdvocateShambhu Prasad, Adv.
DispositionAppeal allowed
Excerpt:
.....dated the 8th january, 1952, was itself barred by limitation and, consequently that application as well as all subsequent applications for execution were also barred by limitation and not maintainable. according to the view taken by the madras high court an appeal or a revision against a decision os an application for review covered by clause (3) as well as an appeal or a revision against an amendment of a decree covered by clause (4) would also be within the scope of the word 'appeal' in clause (2). the question, however, is if the revision is directed not against an order of one of the kinds mentioned in clauses (1), (3) or (4) would it still be covered by the word 'appeal' in clause (2). the supreme court in the case cited above had indicated the scope of the word 'appeal' by..........be an 'appeal' within the meaning of that word as contemplated in that clause.3. the scope of the word 'appeal' as used in clause (2) of col. 3 of article 182 of the limitation act has come up for decision before various courts in various cases. the leading case used to be a decision of the privy council--nagendra nath v. suresh chandra, air 1913 pc 165. it is however not very necessary to consider the effect of that decision as subsequently there have been numerous, decisions of various high courts' and one decision of the supreme court which are of greater assistance. the supreme court decision which is to be taken into account is bhawanipore banking cor-poration ltd. v. gouri shanker sharma : [1950]1scr25 . in this case the scope of the word 'appeal' was' explained by their lordships.....
Judgment:

V. Bhargava, J.

1. This is a second appeal arising out of proceedings for execution of a decree. The decree in question was passed in a suit which was instituted in the year 1935, and was actually passed on 17th February, 1936. There was an appeal against the decree which Was decided on 17th November, 1941, confirming the decree. These were preliminary decrees. On 1st September, 1945, a direction was made for preparation of a final decree and the final decree was actually prepared and signed on 15th September, 1945. Thereafter the judgment debtor-appellant applied on the 18th of December, 1945, for amendment of the decree on the ground that the decree had not been framed in accordance with the judgment. On the 8th of April, 1946, this application for amendment was partly allowed.

The Court held that, in framing the decree, there had been one of the errors pointed out in the application and to that extent the Court directed the amendment of the decree. Another alleged error pointed out in the application was held by the Court not to exist and the amendment sought on that basis1 was rejected. On the 12th of April, 1946 as a consequence of the order passed, the partial amendment allowed was incorporated in the preliminary as well as the final decrees. On the 12th of November, 1946, the judgment-debtor-appellant moved an application in revision against that part of the order of the 8th of April, 1946, by which a part of the amendment in the decree sought by him had been refused. This revision was dismissed or the 6th of February, 1950, by this Court.

2. While these proceedings were going on in the suit or in connection with the decree, there were also proceedings for execution of the decree. The first application in connection with the execution proceeding's was made on the 1st of April, 1947, by which the decree-holder prayed for a certificate transferring the decree to another Court On the 21st of March, 1947, (sic) (May?) the Court issued a certificate for transfer of the decree. However, in pursuance of that certificate, no execution application was actually presented in the transferee Court. Subsequently, the second execution application was moved on the 8th of January, 1952, which was dismissed in default on the 3rd of July, 1952. Then the third execution application was presented on the 28th of September, 1953, and it was again dismissed in default on the 6th of July, 1954. The last and the fourth execution application was moved on the 16th of July, 1954, and it is out of this execution that the present proceedings have arisen.

On the 6th of November, 1954, the judgment-debtor filed an objection under Section 47 of C. P. C. pleading that the execution of the decree was barred by limitation. The point urged was that the second application for execution dated the 8th January, 1952, was itself barred by limitation and, consequently that application as well as all subsequent applications for execution were also barred by limitation and not maintainable. This point was urged on the basis that the first execution application was moved on the 1st of March, 1047, and that in that connection the last step taken in aid of the execution was to obtain a certificate on the 21st of March, 1947. The next execution, application should therefore have been moved within three years from the 21st of March, 1947, under Article 182 of the Limitation Act. The second execution application having been moved on the 8th of January, 1952, was thus time-barred.

On behalf of the decree-holders, limitation was sought to be saved on, the basis of the proceedings which were going on in connection with the amendment of the decree. It was firstly urged that, under Clause (4) of col. 3 of Article 182 of the Limitation Act the period of limitation would start running from the 8th of April, 1946, on which date the amendment of the decree was actually granted. So far as this plea is concern-ed learned counsel for the judgment-debtor-appellant has not contested its correctness. The further plea on behalf of the decree-holders was that a revision was filed by the judgment-debtor-appellant on the 12th of November, 1946, against the order dated 8th of April, 1.946 and it was decided by this Court on the 6th of February, 1950, and a fresh period of limitation started running with effect from the 6th of February, 1950, under Clause (2) of col. 3 of Article 182 of the Limitation, Act.

This point raised on behalf of the decree-holders is contested by the judgment-debtor on the ground that that Clause (2) is not applicable as a decision in the revision against the refusal to amend the decree cannot be deemed to be an 'appeal' within the meaning of that word as contemplated in that clause.

3. The scope of the word 'appeal' as used in Clause (2) of col. 3 of Article 182 of the Limitation Act has come up for decision before various Courts in various cases. The leading case used to be a decision of the Privy Council--Nagendra Nath v. Suresh Chandra, AIR 1913 PC 165. It is however not very necessary to consider the effect of that decision as subsequently there have been numerous, decisions of various High Courts' and one decision of the Supreme Court which are of greater assistance. The Supreme Court decision which is to be taken into account is Bhawanipore Banking Cor-poration Ltd. v. Gouri Shanker Sharma : [1950]1SCR25 . In this case the scope of the word 'appeal' was' explained by their Lordships of the Supreme Court in the following words:-

'The expression 'where there has been an appeal' must be read with the words in col. 1 of Article 182, viz., 'for the execution of a decree or order of any Civil Court....', and however broadly we may construe it, 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 execution.'

This view expressed by the Supreme Court came up for interpretation subsequently before a Full Bench of the Madras High Court in Sivaremachari v. Bayya Anjareya Chetty : AIR1951Mad962 and the Full Bench of that Court gave its interpretation to the word 'appeal' in the light of this decision of the Supreme Court. The view expressed by the learned Chief Justice of the Madras High Court who delivered the majority judgment was as follows:-

'In my opinion, that word (appeal) which is no doubt a general word must bear a meaning restricted by its context and the meaning that I would give to it is 'in appeal from a decree or order of the nature mentioned in Clauses 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 view expressed by the Full Bench of the Madras High Court was followed by the Rajasfhan High Court in Sankal Chand v. Punam Chand . That view of the Madras High Court has, however, been dissented from by a learned Single Judge of the Bombay High Court in Sardar Singh Amarsiug v. Ram-karan Ramnath, AIR 1960 Bom 154. In view of these decisions by the various Courts learned counsel for both the parties addressed us on the question as to what should be the scope of the word 'appeal' used in this clause.

It appears to us that it will not be advisable to try to define the full scope of the word 'appeal' as used in this clause and that we should confine our attention to the interpretation of that word in so far as it is necessary for the purpose of deciding this appeal only. In the present appeal the question is whether the revision; which was filed against the partial dismissal of the application for amendment of the decree, was an 'appeal' within the meaning of this clause and whether a fresh period of limitation would start running from the date on which that revision was decided and consequently we hereafter proceed to discuss this limited point only.

4. In this connection the first point that we have to consider is as to whether the word 'appeal' will cover and include a revision or not A Division Bench of 'this Court in Ajudhia Prasad v. U. P. Government, 1947 All LJ 79: (AIR 1947 All 390) held that the word 'appeal' in this clause includes a revision. That decision of the Division Bench of this Court is binding on us and having regard to the view that we are taking on the next question learned counsel for the appellant did not address us on this point in detail so as to challenge the view expressed by that Division Bench, For the purpose of dealing with the question, therefore, we have to proceed on the assumption that the decision of the Division Bench in that case is correct and binding on us and that accordingly the word 'appeal' in this clause includes a revision.

5. The principal question for our decision thus is whether the revision which was filed in this Court an the 12th of November, 1946, was of such a nature as to be covered by the word 'appeal' in that relevant clause. There is, of course, no doubt that if that revision had been, directed against a decree which is under execution, then on the basis that an appeal includes a revision such a revision would have been an appeal within the meaning of that clause.

According to the view taken by the Madras High Court an appeal or a revision against a decision os an application for review covered by Clause (3) as well as an appeal or a revision against an amendment of a decree covered by Clause (4) would also be within the scope of the word 'appeal' in Clause (2). The question, however, is if the revision is directed not against an order of one of the kinds mentioned in Clauses (1), (3) or (4) would it still be covered by the word 'appeal' in Clause (2). The Supreme Court in the case cited above had indicated the scope of the word 'appeal' by laying down that it must be directed against an order which is not passed in a collateral proceeding and must not be against an order which has no direct or immediate connection with the decree under execution.

Learned counsel for the respondents-decree-holders has urged before us that the revision, which was filed in this Court and which is under consideration in the present case, being directed against an order refusing to amend the decree had a direct and immediate connection with the decree which was being executed and it should therefore, be held by us that, on the principle laid down by the Supreme Court, it was a revision covered by the word 'appeal' in Clause (2). The scope of the word 'appeal' laid down by their Lordships of the Supreme Count, it is to be noticed, is not in a positive form explaining what types of appeals and revisions would be appeals within Clause (2), It is only in the negative form laying down that no appeal or revision would be an 'appeal' within Clause (2) if it is against an order in collateral proceedings or it has no direct or immediate connection with the decree under execution.

In the circumstances the explanation of the scope of the word 'appeal' as laid down by the Supreme Court cannot be held to be a completely exhaustive one, and it is, therefore, open to us to see whether, on a correct interpretation of the language used by the Act and the intention as it appears from that language it would be correct to hold that the word 'appeal' in Clause (2) will include a revision against an order refusing amendment in a decree. In this connection, we may mention that learned counsel for the respondents tried to urge before us that the revision being against the order dated the 8th of April, 1946, should be held to be a revision against the whole of that order Including the Order granting amendment of the decree and consequently on the basis of the principle laid down by the Full Bench of the Madras High Court it should be held that it was covered by the word 'appeal' in Clause (2).

This submission of learned counsel cannot be accepted in view of the clear indication of the nature of the revision given by the lower appellate court in its judgment. The lower court has said that the judgment-debtor filed the revision against the rejected portion of the amendment application and it was this revision which was dismissed on the 13th of February, 1950. The revision in this Court was, therefore, con-fined against the order rejecting the application and not against the order partially allowing that application and we have, therefore, to see whether a revision against the order rejecting an application for amendment can be covered by the word 'appeal' am Clause (2).

6. For the purpose of interpreting the scope of the word 'appeal' in connection with proceedings for amendment of a decree, it appears to us that significance must be attached to the fact that the legislature in Clause (4) has made special provision for cases where a decree is amended. In Clause (4) the language is that the period of limitation will start from the date of amendment where the decree has been amended. The use of this language clearly shows that the legislature only wanted a fresh start of limitation, where there ig actual amendment of the decree. If the decree is not actually amended no fresh date for the start of the period of limitation is provided.

In this connection a comparison of 'the provision made in this Clause (4) with the provision made in Clause (3) is of great significance. Clause (3) deals with a case where there may be an application for review of a judgment and that clause lays down that wherever a court has made a review of a judgment a fresh period of limitation will start from the date of the decision passed on the review application. It means that if the Court entertains a review application and goes into the question of deciding whether the judgment should or should not be reviewed on the grounds permitted by law a fresh period of limitation will start running from the date of the decision on that review application, whether that review application may be granted or rejected.

In the case of an amendment of the decree, the provision is much narrower. Under Clause (4) a fresh period of limitation is to start only wheat the decree is actually amended and not merely on the ground that an application for amendment has been decided. In the case of a review, therefore, even the rejection of the review application will start a new period of limitation while in the case of an amendment application a fresh start of limitation is available only when, that amendment is granted and not when the amendment is refused.

It appears that, when the legislature has made no provision for a fresh period of limitation starting as a result of rejection of the application for amendment, if would be anomalous to hold that a fresh period of limitation will start from the date on which an appeal or a revision against that order of rejection is decided. In the case of an application for amendment, there-fore, the word 'appeal' used in Clause (2) should not in our opinion, be given such a wide meaning as to cover an appeal or a revision against an order refusing to make an amendment.

7. We may also point out an anomaly which, it appears to us, would arise if we were to accept the interpretation sought to be put On the word 'appeal' on behalf of the respondent. There may be a case where a decree may have become time-barred already. Such a decree does mot cease to exist though it becomes inexecutable. In such a case, an application for amendment may be made. After the decree is actually amended, a fresh period of limitation under Clause (4) would start and that decree would become executable. Such a new right of execution of the decree may have been contemplated by the legislature because the legislature felt that on amendment the decree should be treated as it ft was an entirely new decree and it should become executable as such.

There may, however, be cases where an application for amendment is rejected and it would be anomalous that on the rejection of that application and that order of rejection being taken up in appeal or revision a fresh period of limitation should be available to the decree-holder to execute the decree. This anomaly would be all the more striking if it be kept in view that am application for amendment of the decree can be moved not only by the judgment-debtor but also by the decree-holder.

In a case where the decree has become time-barred, the decree-holder may move an application for amendment of the decree which may have in fact no force and which he knows would be rejected. Alter that application is rejected, he can easily go up in revision and then, claim that his decree has become executable, the period of limitation to be computed from the date of rejection of that revision. The fact that the revision had no force and was rejected would not be very material because it has already been held by the Privy Council in the case cited above that if there has been in fact an appeal within the meaning of Clause (2) it is immaterial whether that appeal had or had no force.

Thus a decree-holder by making an application for amendment and by filing a revision against the order rejecting that application, both of which proceedings may have had no force at all, could circumvent the law and obtain a fresh lease of life for executing his decree. Such means can be adopted by a decree-holder at any time if the interpretation of the word 'appeal' sought to be put on behalf of the respondents in the present case were to be accepted by us.

It is clear that the legislature could never have intended to put such a weapon, in the hands of a decree-holder so that he could entirely circumvent the law of limitation and at his choice, move frivolous applications for amendment of his time-barred decree, take up the orders of rejection in frivolous revisions and obtain orders of dismissal of those revisions for the purpose of having a fresh right to execute the decree. This reason given by us impels us to hold that the word 'appeal' in Clause (2) should not be held to include an appeal or a revision against an order rejecting an amendment of a decree.

8. We may add that the views we have expressed above are partially supported by a decision of a Full Bench of this Court in Ballabh Dass v. Shiva Prasad : AIR1951All245 and fully supported by a decision of the Patna High Court in Birendra Prasad v. Shyam Nandan : AIR1955Pat333 .

9. As a result, the appeal is allowed andthe objection of the judgment-debtor is accepted,so that the execution shall be held to be time-barred. In the circumstances of this case wedirect that the parties will bear their Own costsin this Court but the appellant will be entitledto the costs of the objection and the appeal inthe lower appellate Court.


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