Skip to content


Sukhnandan Singh Vs. Mt. Ramdeyi Kunwar and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Reported inAIR1932All601
AppellantSukhnandan Singh
RespondentMt. Ramdeyi Kunwar and ors.
Excerpt:
- - as to section 14 it cannot be said that the appellant in the present case was prosecuting another civil proceeding against the same party for the same relief in a court which from defect of jurisdiction or other causes of a like nature was unable to entertain it;pullan, j.1. the appellant is a decree-holder who obtained a final decree in a mortgage suit on 5th march 1926. he applied for execution of the decree on 21st march 1929 and his application has been dismissed as being barred by time. in appeal the decree-holder asks us to consider that his application should be held to be within time because after the final decree was passed ex parte an application was made by the judgment-debtor for setting aside the ex parte decree, and this application was not rejected till 30th march 1926, by an order which was affirmed on appeal on 14th may 1926. it is suggested that the application for execution may be made within three years of the date of the dismissal of the application for setting aside the final decree in appeal. article 182, lim. act, gives.....
Judgment:

Pullan, J.

1. The appellant is a decree-holder who obtained a final decree in a mortgage suit on 5th March 1926. He applied for execution of the decree on 21st March 1929 and his application has been dismissed as being barred by time. In appeal the decree-holder asks us to consider that his application should be held to be within time because after the final decree was passed ex parte an application was made by the judgment-debtor for setting aside the ex parte decree, and this application was not rejected till 30th March 1926, by an order which was affirmed on appeal on 14th May 1926. It is suggested that the application for execution may be made within three years of the date of the dismissal of the application for setting aside the final decree in appeal. Article 182, Lim. Act, gives the period of three years for an application for the execution of a decree from : (1) the date of the decree or order; (2) where there has been appeal, the date of the final decree or order of the appellate Court, or the withdrawal of the appeal, and (3) where there has been a review of judgment, the date of the decision passed on the review.

2. In the present case there was no appeal against the final decree, and it has been ruled by this Court as far back as the year 1879 in the case of Sheo Prasad v. Anrudh Singh [1878-80] 2 All. 273, that the words 'where there has been an appeal' contemplate and mean an appeal from the decree and no other appeal. This view has been confirmed by the decisions of numerous other High Courts. We need only give the following instances : Jivaji v. Ramchandra [1892] 16 Bom. 123; Rai Brijraj v. Nauratan Lal [1918] 3 Pat. L.J. 119 and Fakirohand Mandal v. Daiba Charan Parni : AIR1927Cal904 . We have been shown no ruling of the Allahabad High Court which dissents in any way from the views expressed by the judgment to which we have referred : Sheo Prasad v. Anrudh Singh [1878-80] 2 All. 273 and we ourselves see no reason for taking a different view.

3. It has however been suggested that the proceedings taken for setting aside the ex parte decree should be held to be proceedings for a review of judgment, and the final date of the decision on those proceedings should be taken as the date from which limitation for execution of the decree began to run. But although there is an analogy between an application for setting aside an ex parte decree and an application for review, we are of opinion that in Article 182, Lim. Act, the words review of judgment' must be applied strictly to a review of judgment, as the words are used in other portions of the same schedule. The Limitation Act is of the year 1908, the same year in which the Civil Procedure Code was amended, and there is no reason to suppose that the words review of judgment have a different significance in the Limitation Act from that which they bear in the Civil Procedure Code; and we find that Articles 161 and 162 provide for limitation for applying for a review of judgment, whereas Article 164 deals with an application for setting aside an ex parte decree. Moreover the clause on, which the learned Counsel relies does not refer to an 'application' for review but to cases where there has been a review of judgment. It has also been suggested that the appellant might take advantage of Section 14 or Section 5, Lim. Act. As to Section 14 it cannot be said that the appellant in the present case was prosecuting another civil proceeding against the same party for the same relief in a Court which from defect of jurisdiction or other causes of a like nature was unable to entertain it; and as to Section 5 we do not consider that this section can be invoked in the case of an application for execution of a decree. The appeal accordingly fails, and is dismissed with costs.


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