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Kunwar Bahadur Singh Vs. Sheo Shankar - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad
Decided On
Case NumberExn. Second Appeal No. 1796 of 1946
Judge
Reported inAIR1950All327
ActsLimitation Act, 1908 - Schedule - Article 182, 182(2) and 182(3)
AppellantKunwar Bahadur Singh
RespondentSheo Shankar
Appellant AdvocateLakshmi Saran, Adv.
Respondent AdvocateHarnandan Pd., Adv.
DispositionAppeal allowed
Excerpt:
- - 165) (ubi supra), namely, that in interpreting rules of limitation the strict grammatical meanings of words is the only safe guide. i shall then endeavour to explain why i consider that these words were not intended to be supplied by pure guess, but that they were intended to be supplied by certain well recognised rule of grammar or common speech, so that it is not possible to read into the expression any words other than those. it has long been a well established principle to be applied in the consideration of acts of parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to.....seth, j.1. the appellant in this case is the judgment-debtor. he objected to the execution of the decree against him, pleading that the application for execution was barred by limitation. this objection has been overruled by the lower court although it was upheld by the court of first instance. so the judgment-debtor has come up to this court in second appeal, repeating the same objection.2. the decree sought to be executed was passed ex parte, on 4th november 1933. the defendant applied under order 9, rule 13, civil p c., to have it set aside. this application was dismissed on 30th october 1934, and the appeal from the order dismissing this application was itself dismissed on 30th january 1936. the first application for execution was made on 12th november 1941, and was dismissed for.....
Judgment:

Seth, J.

1. The appellant in this case is the judgment-debtor. He objected to the execution of the decree against him, pleading that the application for execution was barred by limitation. This objection has been overruled by the lower Court although it was upheld by the Court of first instance. So the judgment-debtor has come up to this Court in second appeal, repeating the same objection.

2. The decree sought to be executed was passed ex parte, on 4th November 1933. The defendant applied under Order 9, Rule 13, Civil P C., to have it set aside. This application was dismissed on 30th October 1934, and the appeal from the order dismissing this application was itself dismissed on 30th January 1936. The first application for execution was made on 12th November 1941, and was dismissed for default, eight days later, on 20th November 1941. The second application for execution, which has resulted in this appeal, was made on 3rd October 1944. It would be in time under Article 182 (5), Limitation Act, if the first application for execution was in time, and it would be beyond time, if that application itself was beyond time, for in that case it would not be an application made in accordance with law, capable of giving rise to a fresh period of J imitation.

3. It is undisputed that in computing the period of limitation for the first application for execution a period of three years, during which the Temporary Postponement of Execution of Decrees Act (Local Act X [10] of 1937) remained in force, has to be excluded. It is obvious, therefore, that it was within time when made, if limitation for it is to be reckoned from 30th January 1936, the date when the appeal against the order under Order 9, Rule 13, Civil P. C., was dismissed. It is equally obvious that it was beyond time, if limitation for it is to be reckoned from 4th November 1933, the date of the decree. It is further obvious that the limitation is to be reckoned from this last mentioned date unless Clause (2) in column III of Article 182 of schedule I, Limitation Act (hereinafter referred to as Article 182 (2)') applies to the case.

4. The contention on behalf of the decree-holder is that 'appeal' in Article 182 (2) means an appeal which imperils the decree sought to be executed' and therefore, the appeal from the order refusing to set aside the ex parte decree was an appeal contemplated by Article 182 (2) and the limitation for execution is to be reckoned from the date of the final order in that appeal. The contention on behalf of the judgment-debtor is that 'appeal' in Article. 182 (2) means an appeal from the decree sought to be executed and no other appeal, and that the appeal from the order refusing to set aside the ex parte decree was not an appeal contemplated by that Article.

5. The sole question for decision in this appeal is, which of these two opposing contentions is correct. Either party has supported his contention by a reference to decided cases, which are in no way reconcilable The judgment-debtor has this advantage, however, that the two cases decided by this Court, bearing on this point (and both of them are indistinguishable from this case) are in his favour. Ordinarily this should conclude the appeal in his favour, But it is submitted on behalf of the decree-holder that the view expressed in these two cases decided by this Court, has been overruled by the decision of their Lordships of the Judicial Committee in Nagendranath De v. Sureshchandra De, 60 Cal. 1. (A.I. R. (19) 1932 P. C. 166), as interpreted by certain other High Courts, and requires reconsideration. We have thus been called upon to interpret ourselves Article 182 (2) once again according to its language, and also in the light of decided cases.

6. It has been stated that opposing views have been entertained about the correct interpretation of this Article. In this state of conflict, it is desirable, before adverting to decided cases to construe the clause independently, that is, according to its language and context, keeping in view what was said by their Lordships of the Judicial Committee in Nagendranath De v. Sureshchandra De, 60 Cal 1 . (A I. R. (19) 1932 P. C. 165) (ubi supra), namely, that in interpreting rules of limitation the strict grammatical meanings of words is the only safe guide. It is permissible to take into account the legislative history also. The relevant portion of Article 182 may be reproduced thus :

Description of Period of Time from whichapplication. limitation. period begins to run.For the execution of Three years. 1. The date of decree ora decree or order order ; or of any Civil Court 2. (where there hasnot provided for by been an appeal) Article 183 or by the date of the or Section 48 of the Code order, final decree of Civil Procedure, 1908. of the AppellateCourt.

6a. The expression to be construed, is, 'where there has been an appeal.' It conveys no meaning unless some more words are added to it or read into it. The conflict of opinion id due to the fact that various learned Judges have read different words into this expression according to their own light to give it a meaning. I shall endeavour first to indicate briefly why the expression conveys no meaning, unless some more words art) read into it. I shall then endeavour to explain why I consider that these words were not intended to be supplied by pure guess, but that they were intended to be supplied by certain well recognised rule of grammar or common speech, so that it is not possible to read into the expression any words other than those. I shall then state what I understand the clause to mean, when so interpreted before adverting to decided cases.

7. The term 'appeal' stands for a relative concept, for the idea of an appeal is always related to, and dependent on, the idea of that, from which it is an appeal. An appeal must always be an appeal from something--some decision, some order, some decree. There cannot be an appeal in the abstract, an appeal for to, no thing. So that, whenever the term 'appeal' is used in any expression to convey any meaning, that from which it is an appeal, should be, and always is, indicated either by express words or by necessary implication. In the instance under consideration, there being no such indication by express words, it follows, that the legislature intended it to be understood by necessary implication, from the context.

8. It is a common form of speech to leave unexpressed words, which refer to something which has been mentioned immediately before. It is thus that language attains perfection by achieving brevity without sacrificing clarity of expression. For example, in the sentence 'the accused was present in Court and was reprimanded,' there are no express words to indicate, who was reprimanded, or the occasion when he was reprimanded. Nevertheless there can be no doubt in the mind of any one to whom the statement is made, that the person reprimanded was the accused, and the occasion when he was reprimanded was that, when he was so present in Court. This is so because according to the rule of grammar or common speech, omitted words are understood to refer to that, which has been mentioned before. If, however, it was intended to convey that some other person was reprimanded, or that he was reprimanded on some other occasion, the sentence is incapable of conveying such meaning without express words of indication.

9. In my opinion this method, by which the language required to give expression to an idea is abbreviated, supplies the key to the interpretation of the expression under consideration. It seems that the. words required to define the appeal mentioned in Clause (2) were omitted, because it was thought that according to the rule of grammar or common speech, they would be understood to refer to something mentioned immediately before in Clause (1), namely, the decree sought to be executed, and not because it was intended that the interpreter should be left guessing for them. I see no reason to impute to the legislature an intention to be unintelligible, mysterious or enigmatic, nor do I find any reason to suppose that the legislature was unaware, that to talk of an appeal, without indicating by express words or by necessary implication that an appeal from which is meant, is to talk in obscure, if not in wholly unintelligible, language. Accordingly, reading Clause (2) along with Clause (1) grammatically, that is, according to the rules of common speech, and considering the whole expression, 'the date of the decree or order, or where there has been an appeal, the date of the final decree or order of the appellate Court,' I understand that the appeal' mentioned in Clause (2) refers to an appeal from the decree or order sought to be executed, and to no other appeal. I am enabled to express this view with added confidence, for I find that other learned Judges also, who have tried to gather the meaning of the clause only from the language employed by the Legislature, have arrived at the same conclusion: Sheo Prasad v. Anrudh Singh, 2 ALL. 273, Jivaji v. Ramchandra, 16 Born. 123, Baikanta Nath v. Aughore Nath, 21 Cal. 387, Jabar Khan v. Rahim Khan, A. I. R (9) 1922 Nag. 197 : (18 N. L. R. 190), Fakir Chand v. Daiba Charan : AIR1927Cal904 and Mulkh Raj v. Gurditta, A. I. R. (16) 1929 Lah. 283 : (120 I. C. 179).

10. Baikanta Nath's case, 21 Cal. 387 was, no doubt, a case under a different statute, but the language interpreted was the same.

11. I am not at all impressed by the argument that to interpret 'appeal' in Clause (2) to mean an 'appeal from the decree or order sought to be executed' is to read into that clause words, which are not there, for it is not reading something into the clause which is not there, but it is reading something into it which is already there, by necessary implication. If, however, it amounts at all to reading something which is not there, the answer is that something has to be read into it in order to give it a meaning whether that something to be read be, 'from the decree sought to be executed,' or whether it be 'which imperils the decree sought to be executed' or even whether it be, 'in the suit in which the decree sought to be executed was passed.' I have already indicated why it is permissible to read 'from the decree sought to be executed' or 'therefrom,' after the word 'appeal,' and why to read anything else, as having been intended by the Legislature, will be a matter of pure guess without any basis for preferring one guess to another, except notions of expediency.

12. The expression under consideration was construed for the first time by a Bench of this Court as far back as the year 1879 in Sheo Prasad v. Anrudh Singh, 2 ALL. 273, where it was observed:

'We think it beyond doubt that the words 'where there has been appeal, contemplate .and mean an appeal from the decree and no other appeal.'

The Bombay High Court, following Sheo Prasad's case, 2 ALL. 273 (ubi supra) interpreted the expression similarly in Jivaji v. Ramchandra, 16 Bom. 123 in the year 1891. The decision of the Calcutta High Court in Baikanta Nath v. Aughore Nath, 21 Cal. 387, which interpreted the same expression in a different statute in the same way, was pronounced in the year 1893. Thus, when the present Limitation Act (Act IX [9] of 1908) was framed, the Legislature was aware of how the language used by it in Article 167 (2), Limitation Act of 1871 (Act IX [9] of 1871) or the same language used by it in Article 179 (2), Limitation Act of 1877 (Act XV [15] of 1877) and the same language used by the Bengal Legislature in a Tenancy Act, had been interpreted and understood by the Courts: (H. Young & Co. v. Leamington Corporation, (1882) 8 A C. 517 at p. 526 : (52 L. J. Q. B. 713); Ex parte County Council of Kent, (1891) 1 Q. B. 725 at p. 728: (60 L. J. Q. B. 435).)

13. When certain words used in a statute have received judicial interpretation and are repeated in a subsequent statute, it is to be assumed that the Legislature has used them in the same sense in which they have been judicially interpreted. This rule of construction appears to be established beyond doubt:

'It has long been a well established principle to be applied in the consideration of Acts of Parliament that where a word of doubtful meaning has received a clear judicial interpretation, the subsequent statute which incorporates the same word or the same phrase in a similar context, must be construed so that the word or phrase is interpreted according to the meaning that has previously been assigned to it.'

James L. J, in the case of Ex parte Campbell In re Cathcart, (1871) 5 Ch. 703 at p. 706; expresses this rule in the following terms:

'Where once certain words in an Act of Parliament have received a judicial construction in one of the Superior Courts, and the Legislature has repeated them without alteration in a subsequent statute, I conceive that the Legislature must be taken to have used them according to the meaning which a Court of competent jurisdiction has given to them.' And this opinion was expressed in a case where the learned Lord Justice himself said it was difficult to bring the interpretation within the words of the Act. The same opinion was expressed by Lord Halsbury in delivering the judgment of the Judicial Committee in the case of Webb v. Outrim, 1907 A. C. 81 at p. 89 : (76 L. J. P. C. 25), and I know of no authority 'that has in any way weakened the effect of this pronouncement. It is in my opinion a salutary rule and one necessary to confer upon Acts of Parliament that certainty which, though it is often lacking, is always to be desired.' Per Viscount Buckmaster in Barras v. Aberdeen Steam Trawling and fishing Co., 1933 A. C. 402 : (102 L. J. P. C. 33) See also Greaves v. To field, (1884) 14 Ch. D. 563 at p. 571: (50 L. J. Ch. 118) and Jay v. Johnstons, (1893) 1 Q. B. 25.

So that it should be assumed that when the legislature repeated in Clauses (1) and (2) of Article 182, Limitation Act (IX [9] of 1908), the language of Article 167 (2), Limitation Act of 1871 and of Article 179 (2), Limitation Act of 1877, and of the Bengal Tenancy Act, it intended to use that language in the same sense in which it had been judicially interpreted in the cases already cited.

14. The two rules of construction, namely, the one stated in Nagendranath's case , that rules of limitation should be interpreted strictly grammatically, and the other stated by Viscount Buckmaster in the case of Barras, (1933 A. C. 402 : 102 L J. P. C. 33) definitely determine the construction that should be placed on Article 182 (2) and leave no room for any guess, any surmise or any speculation.

15. So far as this Court is concerned it is committed to the view that the 'appeal' mentioned in Article 182 (2) or in the corresponding provisions of the earlier Limitation Act, means an appeal from the decree or order sought to be executed and no other appeal : Sheo Prasad v. Anrudh Singh, (2 ALL, 273) and Sukhnandan Singh v. Mt. Ramdevi Kunwar : AIR1932All601 . The same view prevails in the Calcutta High Court, Lahore High Court and at Nagpur : Fakir Chand v. Daiba Charan : AIR1927Cal904 , Haris Chandra v. Dines Chandra, A. I. R. (33) 1946 Cal. 375 : (50 C. W. N. 667), Mulkh Raj v. Gurditta, A. I. R. (16) 1929 Lah. 283: (120 I. C. 179), Jabar khan v. Rahim Khan, A. I. R. (9) 1922 Nag. 197 : (18 N. L. R. 190). The Bombay High Court, having gone back upon its view expressed in Jivaji's case (16 Bom. 123) (ubi supra) in Nagappa Bandappa v. Gurushantappa, 57 Bom. 388 : (A. I. R. (20) , 1933 Bom. 255) and Narayan Ganpat v. Radhabai Krishnaji, A. I. R. (23) 1936 Bom. 162 : (162 I. C. 223), has reverted to it in D. M. Jacinto v. J. D. B. Fernandez, A. I. R. (26) 1939 Bom. 454; (41 Bom. L. B. 921) and Mahadeo Bhimashankar v. Fatumiya Husseinbhai, I. L. R. (1948) Bom. 521 ; (A. I. R. (35) 1948 Bom. 337). So that it may be said that the same view now prevails in the Bombay High Court also. The Patna High Court expressed the same view in Rai Brijraj v. Nauratan Lal, A. I. R. (4) 1917 Pat. 167 : (3 Pat. L. J. 119), but has repudiated it in Firm Dedhraj Lachminarayan v. Bhagwan Das, 16 Pat. 306 : (A. I. R. (24) 1937 Pat. 337) and the Madras High Court has taken the opposite view in more cases than one.

16. Before the decision of their Lordships of the Judicial Committee in the year 1932, in Nagendranath De v. Sureshchandra De , it was accepted as settled law that the 'appeal' mentioned in Article 182 (2) or in the corresponding provisions of the earlier Limitation Acts, means an appeal against the decree sought to be executed and no other appeal, the only dissentient voice being that of some learned Judges of the Patna High Court in Somar Singh v. Devenandan Prasad, 6 Pat. 780 : (A. I. R. (14) 1927 Pat. 215) and Somar Singh v. Devenandan Prasad, A. I. R. (15) 1928 pat. 581 : (110 I. C. 483). It is, however, the opinion of some learned Judges that the view expressed in Sheo Prasad's case (2 ALL. 273) (ubi supra) has been overruled by their Lordships of the Judicial Committee in Nagendranath De's case (ubi supra), and as already stated, it has been urged before us on this ground, that we should either dissent from the view expressed by this Court in Sheo Prasad's case (2 ALL. 273) and Sukhnandan Singh's case : AIR1932All601 or refer this appeal to a larger Bench for a reconsideration of that view in the light of the observations made in Nagendranath De's case .

17. Learned counsel for the respondent has relied on certain decisions pronounced after Nagendranath De's case in support of his contention, that the 'appeal' spoken of in Clause (2) is not limited to an appeal from the decree or order sought to be executed and that the statement of law in Sheo Prasad's and Sukhnandan Singh's cases : AIR1932All601 has been overruled. I shall advert to these cases now.

18. In Nagendranath De v. Sureshchandra De , the decree-holders seeking to execute the decree claimed that they were, under Article 182 (2), entitled to reckon limitation from the date when an appeal against the decree sought to be executed by one set of decree-holders against another set of decree holders was dismissed. The High Court overruled this contention holding that they were not entitled, to do so, because (1) the aforesaid purported appeal was so irregular that it was not an appeal at all, but was only an attempt at an appeal, (2) it was not an appeal contemplated by Article 182 (2) as the judgment-debtors were no parties to it, and (3) it was not an appeal contemplated by that article, for it was not an appeal by which the whole decree was imperilled, and finding further that though the application for execution was made within three years from the date of the dismissal of the appeal, it was made beyond three years from the date of the decree, decided that the application was barred by limitation.

19. Their Lordships of the Judicial Committee differed from the High Court on all the three points and holding that an appeal is none. theless an appeal, though irregular or incompetent, and that there is no justification for reading in Clause (2) any qualification either as to the character of the appeal or as to the parties to it, decided that the application for execution was made within time and allowed the appeal.

20. The following propositions of law emerge from the decision of their Lordships in this case: (1) That any application by a party to an appellate Court asking it to set aside or revise a decision of a Subordinate Court is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent. (2) That fixation of periods of limitation must always be arbitrary to some extent and may frequently result in hardship, so that in interpreting rules of limitation equitable considerations are out of place and the strict grammatical meanings of the words is the only safe guide. (3) That in determining the applicability of Article 182 (2) considerations relating to the character of the appeal or relating to the parties to it are quite irrelevant and that an appeal which does not imperil the whole decree and to which the judgment-debtors are no parties is an appeal within the contemplation of Article 182 (2).

21. Having emphasised that equitable considerations were quite out of place in interpreting rules of limitation and that they should be interpreted strictly according to the rules of grammar, their Lordships proceeded further to point out, perhaps in answer to some submissions made at their Lordships' bar suggesting that strict grammatical interpretation of Article 182 (2) would lead to some hardship to the judgment-debtors, that the rule under their Lordships' consideration was an intelligible rule and did not occasion any hardship to judgment-debtors, while it afforded relief to decree-holders. To quote from their Lordships' judgment:

' 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 snob, 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.'

These observations have been understood in some cases as laying down some rule of law, a to the application of Article 182 (2), Limitation Act, and it has been said that according to these observations any appeal, which imperils the decree sought to be executed, is an appeal within the contemplation of that article. I am unable to concur in this view, since it is obvious that these observations were made in justification of a rule of limitation, and not with the object of formulating any rule of limitation or interpretation. The rule definitely formulated is, that rules of limitation (and Article 182 (2) is a rule of limitation) should be construed strictly according to grammar and I am by no means satisfied that words ' which imperils the decree Sought to be executed ' can be read into the clause according to any rule of grammar, by whatever other rule it may be possible to read these words into it. I have already indicated my reasons for the conclusion that the only words that can be read into this clause, according to the rules of grammar, are from the decree', or 'therefrom' after the word 'appeal'.

22. The observations of their Lordships are confined to the parties to the appeal and to its character. Their Lordships were not called upon to consider the character of the decision appealed from. Under these circumstances I do not find it possible to accept the contention that by the observations already quoted their Lordships' intended to overrule the view which had prevailed in this country, almost without dissent for over half a century when Nagendranath De's case came to be decided. In my opinion, therefore Nagendranath v. Sureshchandra has no bearing on the question under consideration.

23. Learned counsel for the respondent has relied on Nagappa Bandappa v. Gurushantappa Shankrappa, 57 Bom. 388 : (A. I. R. (20) 1933 Bom. 255); Firm Dedhraj Lachminarayan v. Bhagwan Das, 16 pat. 306:(A. I. R. (24) 1937 Pat. 337), P. P. Koyakutti v. A. Veerankutti : AIR1937Mad421 ; N. Sriramachandra Rao v. C. Venkateswara Rao, I. L. R. (1939) Mad. 252 : (A. I. R. (26) 1939 Mad. 157) and Thandavaroya Gramani v. Arumugha Mudali : AIR1945Mad261 , in support of his contention, that any appeal which imperils the decree sought to be executed is an appeal within the contemplation of Article 182 (2).

24. In Nagappa Bandappa v. Gurushantappa Shankrappa, 57 Bom 388 : (A. I. R. (20) 1933 Bom. 255), an application for review was allowed and a fresh decree was passed in the suit consequent on review. There was no appeal from this last decree, which was sought to be executed, but an appeal from the order granting review was preferred and dismissed. The application for execution was made within tares years from the date when the appeal was dismissed, but beyond three years from the date of the decree. The Subordinate Judge held, that the decree-holder was not entitled to reckon limitation under Article 182 (2) from the date on which the appeal was dismissed, because (1) it was not an appeal from the decree sought to be executed; (2) it was incompetent, and (3) it was dismissed on a preliminary ground. In the High Court, it was attempted to support the decision of the Subordinate Judge on only one of these grounds, namely, that the appeal was incompetent, and on a fresh ground, that it did not decide the right of parties, and, therefore, was not a final decree passed in appeal, so that the first ground assigned by the Subordinate Judge, the one with which we are concerned in this case, was neither urged by the learned counsel nor directly considered and decided by the learned Judges. Nevertheless there are indications in the judgment that the learned Judges were of the view that the appeal from the order granting review was an appeal contemplated by Article 182 (2). The argument in support of this view may be recapitulated thus : Where there has been an appeal, the decree appealed against merges in the decree of the appellate Court and the decree of the appellate Court would be the only executable decree in the case. The execution of the decree of the appellate Court would foe governed by Clause (1) and not by Clause (2), so that unless Clause (2) is interpreted to contemplate some appeal other than an appeal from the decree sought to be executed, it would become superfluous and nugatory.

25. It seems to me that on this reasoning, even though it may be possible to discover a class of cases to which Clause (2) will be applicable, Clause (4), and perhaps Clause (3), will certainly become superfluous and nugatory. Where there has been an order for review, the original decree is as much submerged in the decree on review, as the decree of the Court of first instance is submerged in the decree of the appellate Court, and on the reasoning of the learned Judges in Nagappa Bandappa Kadadi's case, 57 Bom. 388 (A. I. R. (20) 1933 Bom. 255), the execution of such a decree should be governed by Clause (1) and not by Clause (4), making the last mentioned clause wholly superfluous and nugatory. With great respect to the learned Judges, I do not find it possible to accept a reasoning which renders one clause superfluous in order to make another clause affective.

26. Order 21, Rule 11, Civil P. C., provides another answer to the argument under consideration, It lays down the particulars required to be entered in an application for the execution of a decree. The particulars required to be enter-ad according to Clauses (c) and (d) of the rule are as follows '(c) the date of the decree; (d) whether any appeal has been preferred from the decree.' These two clauses, when read along with what precedes them, indubitably indicate that it was not contemplated by the Legislature, that for the purposes of execution the decree of the trial Court should be treated as having merged in the decree of the appellate Court. There is no reason to suppose that the Legislature thought otherwise when it came to enact Article 182, Limitation Act, shortly after it had enacted Order 21, Rule 11, Civil P. C. In this connection it is important to notice that the Code and the Act were both enacted by the same Legislature in the same year, and further that Order 21, Rule 11, Civil P. C. and Article 182, Limitation Act, both deal with the same subject, an application for the execution of a decree, the one dealing with its contents and the other with the limitation for it.

The question that arose for consideration in Firm Dedhraj Lachminarayan v. Bhagwan Das, 16 pat. 306 : (A. I. R. (24) 1937 Pat. 337) was, whether an appeal from an order under Order 41, Rule 21, Civil P. C., refusing to set aside an ex parts decree passed in appeal, was an appeal within the contemplation of Article 182 (2). Dhavle J. following an earlier decision of his own Court in Rai Brijraj v. Nauratan Lal, 3 pat. L. J. 119:(A. I. R. (4) 1917 Pat. 157) held that the 'appeal in Article 182 (2) means an appeal against a decree in the suit and not an appeal against an order on an application made to set it aside. The Letters Patent Bench, which heard the appeal against the judgment of Dhavle J., thought otherwise. The judgment of the Bench was delivered by Courtney Terrell C. J, and James J. agreed with him.

27. Having referred to what was said by their Lordships in Nagendranath De's case about the interpretation of rules of limitation, the learned Chief Justice observed that Article 182 (2) should be construed strictly and grammatically according to its plain words, that according to such construction, there is nothing in it, which says that the appeal must be from the decree in the suit, and that there was no justification for reading those words into it. Nevertheless, the learned Chief Justice felt that it was necessary to read into the clause some words, even if not those words which were not there to make it intelligible, and relying upon the principle of what he thought was the rule stated by their Lordships of the Judicial Committee in the observations, already quoted from Nagendranath De's case; in an earlier part of this judgment concluded, that the 'appeal in Article 182 (2) means an appeal, which imperils the decree sought to be executed. Finding that an appeal from an order under Order 41, Rule 21, Civil P. C., satisfies this condition, the learned Chief Justice held that it was an appeal contemplated by Article 182 (2).

28-29. I have discussed earlier in this judgment the various points involved in the reasoning of the learned Chief Justice- For the reasons already indicated in that discussion with great respect to the learned Chief Justice I find myself unable to concur in the conclusion reached by him. This case has been relied on by the learned counsel for the respondent in support of another argument also, namely, that an application for restoration is, in substance, an application foe review, such as is contemplated by Article 182 (3), and that an appeal from an order on an application for review is an appeal contemplated by Article 182 (2).

30. There seems to be no force in this contention, for an application for review, in its very essence, is quite different from an application for restoration. The one aims at a reconsideration of the judgment already pronounced and seeks to establish that it is erroneous, while the other seeks that that judgment be entirely ignored from consideration and set aside, whether it be right or wrong. The one concerns itself with the merits of the decision, while the other concerns itself with the sufficiency of service upon the applicant and the sufficiency or otherwise of the cause, preventing him from being present. The Limitation Act does not treat them to be the same in substance, for it provides periods of limitation for them under separate Articles. I am, therefore, of the opinion that an application for restoration is not an application contemplated by Article 182 (3). In this view of the matter it is not necessary to express any opinion on the point, whether an appeal from an order made on an application for review is or is not an appeal contemplated by Article 182 (2).

31 In P. P. Koyakutti v. Veerankutti : AIR1937Mad421 , Venkataramana Rao J., on a review of about half a dozen cases, concluded that 'appeal' in Article 182 (2) means an appeal in the suit, which is likely to affect the decree sought to be executed and applying this conclusion to the question that awaited his decision, held, that the appeal from the preliminary decree is an appeal contemplated by Article 182 (2), when limitation has to be reckoned for the execution of a final decree. The conclusion of the learned Judge is based on the authority of the cases reviewed by him and not on any independent reasoning.

32. The first case relied on by the learned Judge is Narsingh Sewak v. Madho Das, 4 ALL. 274 : (1882 A. W. N. 25) in which a Bench of this Court, in interpreting Article 179 (2), Limitation Act of 1877, which was similarly worded as Article 182 (2), now finder consideration, observed:

'We think the appeal contemplated is an appeal in the salt, not necessarily an appeal from the original decree in the suit.'

The facts of the case were that the decree originally passed in the suit was replaced by a decree passed on review, and the latter decree was itself set aside on appeal from it. The terms of the decree of the appellate Court are not stated in the report, perhaps because they were not taken into consideration in deciding the case. On these facts it was contended on behalf of the judgment-debtor that the 'appeal' referred to in Article 179 (2) meant an appeal from the original decree only and not an appeal from a decree passed on review of the original decree. The observations quoted above were made to repel this contention.

33. In attempting to discover what the learned Judges meant by these observations, the context in which they occur and the circumstances in which they were made should not be ignored from consideration. It is to be noted that the appeal in that case was an appeal from the decree, which finally terminated the litigation, so far as the trial Court was concerned, and that it was not an appeal either from any interlocutory order or from an intermediate decree. It is to be further noted that the learned Judges neither doubted nor dissented from Sheo Prasad v. Anrudh Singh (2 ALL. 273) ubi supra), but, on the contrary, distinguished it, The context and the circumstances, therefore, clearly indicate that the learned Judges did not intend to hold anything beyond this, that am appeal from a decree passed after review was an appeal contemplated by Article 179 (2), Limitation Act of 1877 (Act xv of 1877) corresponding to Article 182 (2) of the present Limitation Act, and further that the learned Judges did not intend in any way to depart from the decision in Sheo Prasad's case (2 ALL. 273).

34. I fail to understand how the decision in Nursing Sewak Singh's case (4 ALL. 274; 1882 A. W. N. 25), or the language used by the learned Judges in that case, lends support to the conclusion reached in Koyakutti's case : AIR1937Mad421 . There is nothing in them to indicate that it was thought by the learned Judges that any appeal which is likely to affect the decree sought to be executed is an appeal within the contemplation of the Article, if it is an appeal arising out of the same suit in which the decree sought to be executed was passed.

35. The learned Judges, who decided Lutful Haq v. Sumbhudin, 8 Cal. 248 : (10 C. L. R. 148), the second case relied on by Venkataramana Rao J., did not advert to the interpretation of Article 179 (2), Limitation Act of 1877, corresponding to Article 182 (2) of the present Limitation Act, and did not consider what appeal was contemplate ed by that Article. Prinsep J. decided the, case on the ground that the order passed by the Subordinate Judge, which had the effect of withdrawing the injunction against the execution of the decree, could be treated to be the final order of the appellate Court in the suit, while Morris J. thought that the application to revive the suit really kept the decree open, which did not become final until the order of the appellate Court; was passed. The decision of Morris J. is thus based not on the interpretation of Article 179 (2), Limitation Act of 1877, but upon the ground that a decree does not become final so long as any proceedings to revive it are pending either; in the Court of first instance or in the appellate. Court, and limitation begins to run when those proceedings are terminated. Neither of the two judgments in Lutful Haq's case : (8 Cal 248 : 10 C. L. R. 143), therefore, support the proposition of law formulated by Venkataramana Rao J; for they are based on entirely different grounds. Moreover, Lutful Haq's case (8 Cal. 248 : 10 C. L. R. 143), was never approved, but was unanimously dissented from by every learned Judge before whom it was cited, until it received its first approval from Venkataramana Rao J. in Koyakutti's case : AIR1937Mad421 . It has not received a second approval since then.

36. Nagendranath v. Sureshchandra and Nagappa v. Gurushantappa, 57 Bom. 388: (A. I. R. (20) 1933 Bom. 255), the third arid the fourth cases relied on in Koyakutti's case, (A. I. R. (24) 1987 Mad. 421 : 1937-1 M. L. J. 409), have already been discussed hereinbefore. The remaining two cases relied on in that case, namely, Somar Singh v. Devenandan Prasad, 6 Pat. 780: (A. I. R. (14) 1927 Pat. 215) and Somar Singh v. Devenandan, A. I. R. (15) 1928 Pat. 581 : (110 I. C. 483), are both decisions of the Patna High Court in the same case, the one on an appeal to that Court and the other on the application for leave to appeal to His Majesty in Council from the decision in appeal. The question for consideration was, whether limitation for the execution of a final decree in a mortgage suit could be reckoned from the date when the appeal from the preliminary decree in the suit was decided, and it was answered in the affirmative by the Bench which heard the appeal as well as by the Bench which heard the application for leave to appeal. Both the decisions have been rested, partly on the arguments based on the relation that exists between a preliminary decree and the final decree that follows it, which have no bearing on the question under consideration, and partly on the proposition that an appeal, which imperils the decree sought to be executed, is an appeal within the contemplation of Art. 182 (2). Neither of the two decisions contains any reasons in support of the proposition. Kulwant Sahay J., who delivered the judgment in appeal, said:

'In my opinion the intention of the Legislature in making this provision was that if an appeal in any way imperils the decree sought to be executed then the date of the final disposal of the appeal should be the date from which the period of limitation ought to be computed.'

and thus rested the proposition on his own opinion. Dawson-Miller C. J., who delivered the judgment, rejecting the application for leave to appeal to His Majesty in Council, thought that the proposition was well established, for he is reported to have said:

'It is further well established that the test in such cases is whether the decree of the appellate Court imperils the validity of the decree it is sought to execute.'

With great respect to the learned Chief Justice, it seems to me that this statement is based upon some misconception. Perhaps the learned Chief Justice had in his mind those cases in which it was held that the appeal contemplated by Article 182 (2) is an appeal which imperils the whole decree and that an appeal which imperils only a part of the decree is not contemplated by it. The question for consideration in those cases was, whether there being an appeal from the decree, was such an appeal within the contemplation of Article 182 (2), if it did not imperil the whole of the decree, and not the one with which the learned Chief Justice was dealing.

37. It would thus appear that out of the six cases relied on in Koyakutti's case, A. I. R. (24) 1937 Mad. 421 : (1937-1 M. L. J. 407), three namely, Narsingh Sewak v. Madho Das, 4 ALL. 274 : (1882 A. W. N. 25) Lutful Haq V. Sumbhuddin, 8 Cal. 248 : (10 C. L. R. 143) and Nagendranath v. Sureshchandra, 60 Cal. 1 : (A. I. R. (19) 1932 P. C. 166) contain nothing in them to support the proposition formulated by Venkataramana Rao J., and that while the two Patna cases reported under the same name, Somar Singh v. Devenandan Prasad, in 6 Pat. 780 : (A. I. R. (14) 1927 Pat. 215) and Somar Singh v. Devenandan, A. I. R. (15) 1928 Pat. 581 : (110 I. C. 483), lay down the same proposition of law, they do not support it by any reasons. It is Nagappa Bandappa v. Gurushantappa, 57 Bom. 388 : (A. I. R. (20) 1933 Bom. 255) only, that contains any reasons. I have already discussed that the reasons given in Nagappa Bandappa's case, 57 Bom. 388 ; (A. I. R. (20) 1933 Bom. 255), do not justify the proposition. Venkataramana Rao J. himself has not given any reasons in support of the proposition. The proposition thus rests only on the authority of the respect due to the learned Judges who have subscribed to it.

38. I do not express any opinion on the correctness of the actual decision in Koyakutti's case : AIR1937Mad421 or Somar Singh's case, (A. I R. (15) 1928 pat. 581: 110 I. C. 483) to 'the effect that limitation for the execution of a final decree may be reckoned from the date when the appeal from the preliminary decree in the suit is decided, for it may perhaps be possible to support it otherwise than on the basis of the proposition already discussed.

39. Koyakutti v. Veerankutti, A. I. R. (24) 1937 Mad. 421 : (1937-1 M. L. J. 407) was followed in Sriramchandra Rao v. Venkateswara, I. L. R. (1939) Mad. 252 : (A. I. R. (26) 1939 Mad. 167) and affirmed in Veerankutti v. Koyakutti, A. I R. (26) 1939 Mad. 785 : (I. L. r. (1939) Mad. 628) by a Bench which heard a Letters Patent appeal against it. The Letters Patent Bench imply followed Sriramchandra's case, I. L. R. (1939) Mad. 252 : A. I. R. (26) 1939 Mad. 157) and, therefore, needs no discussion.

40. Sriramachandra Rao v. Venkateswara, I. L. R. (1939) Mad. 252 : (A. I. R. (26) 1939 Mad. 157) is a case which is on all fours with the present case, for in that case also it was claimed that limitation should be reckoned from the date on which the appeal against the order refusing to set aside the ex parte decree was dismissed. Overruling the contention that 'appeal' in Article 182 (2) means an appeal from the decree or order sought to be executed, King J., who delivered the judgment of the Bench, said :

'The only principle we can discover in the rulings cited for the respondents is that the words 'where there has been an appeal' must be taken in their context, that is to say, with reference to the words in column 1 of Article 182. But it does not necessarily follow that because a decree or order is mentioned in column I, the appeal which is mentioned in column III must be against that decree or order. It is equally logical to say that it must be something which affects that decree or order, and, after all, the Legislature has refrained from saying, what it could have said with ease if that had been its intention, 'where there has been an appeal against that decree or order.'

41. The argument contained in this passage seems to be entirely inconclusive, for on this reasoning the plain answer to the contention, that 'appeal' in Article 182 (2) must be an appeal which imperils the decree sought to be executed, will be that, it is equally logical to say that it must be an appeal from the decree itself, and, after all, the legislature has refrained from saying what it could have said with ease if that had been its intention, 'where there has been an appeal which imperils that decree', so that each opposing contention will be an answer to the other without any reason to give preference to either.

42. The learned Judge than quoted certain passages from Nagendranath De's case and observed :

''But the principles contained in the passages quoted are, we think, wide enough to cover the present case and other oases of a similar nature.' I have already adverted to what is contained in these passages. It is not necessary to repeat, why I consider that nothing contained in Nagendranath De's case supports the view that 'appeal' in Article 182 (2) means an appeal which imperils the decree sought to be executed. It only remains to add that questions of limitation cannot be decided on any principles, and that as observed by their Lordships of the Judicial Committee in Nagendranath De's case 'the fixation of periods of limitation must always be to some extent arbitrary,' and that 'the strict grammatical meaning of the words is the only safe guide.'

43. The learned Judge was then invited to consider the argument that on the interpretation adopted by him even an appeal 'from a decree in another suit, which imperils the decree sought to be executed, would be an appeal within the contemplation of Article 182 (2) and disposed it of by observing:

'That is a situation with which we have not now to deal and may well we think be left until it arises. Meanwhile it is not difficult to perceive a clear distinction between an appeal arising from an order in the very suit whose decree is sought to be executed and an appeal from a decree in quite a different suit.'

Strict grammatical meaning of the words in Article 182 (2), however, does not justify any such distinction. Accordingly, I consider that nothing said in Sriramchandra's case, I. L. R. (1939) Mad. 252 : (A. I. R. (26) 1939 Mad 157), justifies the conclusion that any appeal which imperils the decree sought to be executed is an appeal contemplated by Article 182 (2).

44. Thandavaroya Gramani v. Arumugha Mudali : AIR1945Mad261 , is undoubtedly a case where the decree-holder was allowed to reckon limitation from the date when an appeal from the ex parte decree was dismissed, but it was not disputed in that case that an appeal from an order refusing to set aside an ex parte decree is not an appeal contemplated by Article 182 (2). The appeal was argued on different grounds. This ease, there fore, does not contain anything requiring consideration.

45. I have very carefully and very respectfully considered all the cases cited by the learned counsel for the respondent, as well as all the cases bearing on the question under consideration, referred to in those cases, but I have not been able to discover anything in them to induce me to consider that Sukhnandan Singh v. Ramdeyt Kunwar : AIR1932All601 , has not been correctly decided. On the contrary construing the clause according to the recognised rules of interpretation and according to what has been said by their Lordships in Nagendranath De's case , (ubi supra), I have independently reached the same conclusion.

46. It has never been said, except once, that the decision of an application or a suit, which imperils the decree sought to be executed, pro-Tides a starting point for the period of limitation for the execution of a decree. I fail to understand how then it can be held, that the decision of an appeal from such a decision provides such a starting point. The one exception mentioned above is to be found in Firm Dedhraj Lachminarayan v. Bhagwan Das, 16 Pat. 306: (A. I. R. (24) 1937 Pat. 337), which proceeded on the assumption that an application under Order 41, Rule 21, Civil P. C., is, in substance, an application for review. The case, therefore, did not proceed on the ground that the decision of an application, which imperils the decree, provides a starting point for limitation, but on the ground that Article 182 (3) vas applicable to such a case.

47. In conclusion I hold that an appeal against an order refusing to set aside an ex parts decree is not an appeal contemplated by Article 182 (2), Limitation Act, that the application for execution in this case was barred by limitation, and that the objection of the judgment-debtor should be upheld.

48. I would, therefore, allow the appeal with costs to the judgment-debtor appellant in all the Courts, set aside the decree of the lower appellate Court and dismiss the application for execution.

Wanchoo J.

49. I agree.

50. The appeal is allowed with costs to the judgment-debtor appellant in all the Courts, the decree of the lower appellate Court is set aside and the application for execution is dismissed.


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