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Smt. Rabia Bibi and ors. Vs. Smt. Mohammadi Bibi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberFirst Execution Appeal No. 6 of 1957
Judge
Reported inAIR1960All515
ActsLimitation Act, 1908 - Schedule - Article 182 and 182(2)
AppellantSmt. Rabia Bibi and ors.
RespondentSmt. Mohammadi Bibi
Advocates:Kalbe Mustafa, Adv.
DispositionAppeal dismissed
Excerpt:
civil - dismissal of appeal - article 182 (2) of limitation act, 1908 - appeal from a decree - dismissal after admission and registration for want of prosecution - order of dismissal is final order within the meaning of the act - period of limitation commences from this date. - - 4. the answer to the first question must clearly be in the affirmative. the argument that an appeal filed but dismissed for non-prosecution is a3 good as an appeal not filed is fallacious. an appeal dismissed on merits after severe contest is as good as an appeal not filed, if one judges the matter by the result; but in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words, is their lordships think, the only safe guide. 5. the answer to the second.....desai, j.1. the question raised by the appellants in this appeal is whether the application for execution of a decree passed against them was barred by time or not.2. the decree was for money and was passed against the appellants and in favour of the respondent on 15-4-1947, and was amended on 2-8-1947. the appellants applied on 21-7-1948 for leave to appeal from it as paupers but their application was dismissed! and they paid the court-fee on the memorandum of appeal on 3-11-1948, whereupon the appeal was admitted and a notice of it was given to the respondent. on 3-11-1952 it was dismissed for want of prosecution because translation and printing charges were not deposited by the appellants within the time allowed.on 17-10-1955 the respondent applied for execution of the decree and the.....
Judgment:

Desai, J.

1. The question raised by the appellants in this appeal is whether the application for execution of a decree passed against them was barred by time or not.

2. The decree was for money and was passed against the appellants and in favour of the respondent on 15-4-1947, and was amended on 2-8-1947. The appellants applied On 21-7-1948 for leave to appeal from it as paupers but their application was dismissed! and they paid the Court-fee on the memorandum of appeal on 3-11-1948, whereupon the appeal was admitted and a notice of it was given to the respondent. On 3-11-1952 it was dismissed for want of prosecution because translation and printing charges were not deposited by the appellants within the time allowed.

On 17-10-1955 the respondent applied for execution of the decree and the appellants challenged its maintainability on the ground that it was barred by time. The appellants computed the period of three years limitation from 2-8-1947 while the respondent contended that it was to be computed from 3-11-1952. It cannot be disputed that if it was to be computed from 3-11-1952 the application was within time, The executing Court computed it from 3-11-1952 and held the application to be within time; that is the order impugned before us by the appellants.

3. Admittedly the question is governed by the provision of Article 182 of the Limitation Act, which provides that the period of three years limitation for the execution of a decree or order of a civil Court runs from;

'(1) the date of the decree or order, or

(2) (where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal, or' etc.

3a. Two questions arise, (1) has there been an appeal?, and (2) if so what is the date of the final decree or order passed in it?

4. The answer to the first question must clearly be in the affirmative. Not only did the appellants present an appeal from the decree but also it was admitted and the appellate Court gave notice of it to the respondent. That it was dismissed subsequently on the ground of non-prosecution does not mean that it had not been filed or never came into existence. The answer to the question whether there had been an appeal or not, does not depend upon what its result has been orhow it has been disposed of. The argument that an appeal filed but dismissed for non-prosecution is a3 good as an appeal not filed is fallacious.

An appeal dismissed on merits after severe contest is as good as an appeal not filed, if one judges the matter by the result; the appellant would be in the same position if he had not filed the appeal at all. Still nobody would dispute the fact that in the case there had been an appeal. If there had been an appeal, though it was dismissed on merits, there is no warrant for saying that there had not been an appeal when an appeal after being filed is dismissed not on merits but on the ground of want of prosecution. Referring to the words 'where there has been an appeal' Sir Dinshaw Mulla, speaking for the Judicial Committee of the Privy Council in Nagcndra Nath Dey v. Suresh Chandra Dey

'There is 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. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words, is their Lordships think, the only safe guide.'

In that case an appeal was filed from the decree and though it was irregular in form and was insufficiently stamped, it was admitted, heard and dismissed not only upon the merits but also upon the ground of the irregularity and the Judicial Committee held that the period of limitation for an application for execution of the decree was to be computed from the date of the dismissal of the appeal. Their Lordships rejected the contention that the appeal by reason of the irregularity in form was not an appeal but merely an abortive attempt to appeal and pointed out that there is no definition of 'appeal' in the C. P. C. and 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.'

It is clear that in order to find that there has been an appeal, all that is required is that an appeal was filed and that its prosecution on merits or with due diligence is not a sine qua non of there being an appeal. Order 41, C. P. C., lays down the procedure to be followed when an appeal is filed. Under Rule 1 an appeal must be preferred in the form of a memorandum drawn up in the prescribed manner. If a memorandum of, appeal is not drawn up in the prescribed manner, it may be rejected or returned to the appellant for the purpose of being amended, vide Rule 3.

There may be some force in the contention that when a memorandum of appeal is rejected under this provision it is a case of there being no appeal, what is rejected is not an appeal but a memorandum of appeal, which may not be the same thing. When a memorandum of appeal is admitted the appellate Court is required to register the appeal (vide Rule 9) and to fix a day for hearing it (vide Rule 12) and give notice of it to the respondent (vide Rule 14). Under Rule 11 the appellate Court is empowered to dismiss an appeal without fixing a date for its hearing and giving notice of it to the respondent. An appeal can be dismissed under Rule 17 simply on the ground of the appellant's absence. All these provisions make it clear that an appeal comes into existence at least after itsbeing registered under Rule 9. In Maharajadhiraj Kameshwar Singh Bahadur v. Beni Madho Singh AIR 1931 Pat 422 Kulwant Sahay and Mohammad Noor JJ. observed at p. 424 that:

' if the provisions of Order 41, Rule 1, are complied with and a memorandum of appeal is presented to the Court, such a presentation of a memorandum of appeal is preferring an appeal.'

The contention advanced by Sri Kalbe Mustafa that there had been no appeal in the present case must be rejected.

5. The answer to the second question must equally clearly be '3-11-1952'. No decree was passed in the appeal because it ended in an order or dismissal for want of prosecution passed on 3-11-1952 That was the last or final order passed in the appeal. It is immaterial that it was not passee on merits; Article 182 contains no words to qualify the phrase 'the final decree or order of the appellate Court'. All that it required is that an order of the appellate Court is its final order and not that it is an order on merits. There is absolutely no warrant for importing the word 'judicial' into the consideration and for laying down that the final order of the appellate Court must be a judicial order.

Further, a final order of the appellate Court.which means the order by which the appeal terminates, must in its very nature be a judicial order; an appeal cannot terminate by an administrative or non-judicial order of the Court. In certain circumstances an appeal terminates without an order, for example by abetment or by an order passed not by the appellate Court itself but by its office, as in the case of an appeal to the Judicial Committee of the Privy Council. If an appeal terminates without an order of the appellate Court, the case may not be governed by Clause 2, column 3 of Article 182 but we are not concerned with that question and need not express any definite opinion on it. If there exists an order of the appellate Court and it is final in the sense that it terminates the appeal, the case is brought within the four corners of that clause and the period of limitation must be computed from its date.

6. The matter would not have been referred to us but for a conflict between some decisions of this Court and for certain observations made by the Judicial Committee in Batuk Nath v. Munni Dei ILR 36 All 284: (AIR 1914 PC 65) and Chandri Abdul Majid v. Jawahir Lal, ILR 36 All 350: (AIR! 1914 PC 66). In Batuk Nath's case ILR 36 All 284: (AIR 1914 PC 65) the appellant did not take effectual steps for the prosecution of his appeal to His Majesty in Council and in consequence it stood dismissed without further order in accordance with Rule 5 of the Order in Council of 13-6-1853. It was because there was no order of the appellate Court that the Judicial Committee held that the period of limitation was not governed by Clause 2, column 3 of Article 182.

Nothing was observed by their Lordships in that case which militates against the view taken by us. The facts in Abdul Majid's case ILR 36 All 350 : (AIR 1914 PC 66), were that on 8-4-1893 this Court dismissed an appeal from a Subordinate Judge's decree dated 12-5-1890, the judgment-debtor obtained leave to appeal to the Judicial Committee but did not prosecute his appeal and on 13-5-1901 it was dismissed for want of prosecution. On 11-6-1909 the decree-holder applied for a final decree and the question arose before their Lordships whether it was barred by Article 179 of the then Limitation Act, which was in the same language as Article 182 of the present Limitation Act. The decree-holder sought to compute the period of limitation from 13-5-1901, on which date the judgment debtor's appeal was dismissed by the Judicial Committee for want of prosecution contending that the decree, passed by the Subordinate Judge on 12-5-1890 and merged in the decree passed by the High Court on 8-4-1893 merged in the order of the Judicial Committee dated 13-5-1901. The contention was rejected by their Lordships with the following observations on pages 353-354 (of ILR All) : (at p. 67 of AIR):

'The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognized authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all. To put it shortly, the only decree for sale that exists is the decree, dated the 8th of April, 1893, and that is a decree of the High Court of Allahabad. The operation of this decree has never been stayed, and there is no decree of His Majesty in Council in which it has become merged.'

7. The exact scope of the observations must be fully understood and it must be realised that they were made in reply to the particular contention that the date of dismissal of the appeal for want of prosecution by the Judicial Committee was the date of the decree that was sought to be made absolute through a final decree. Their Lordships were not considering either the question whether there had been aa appeal to the Judicial Committee or what was the date of the final decree or order passed in the appeal, if there was one. Their Lordships simply dealt with the question whether the principle of merger (of a decree of a trial court in the decree of the appellate court dismissing the appeal from it) applies when an appeal is dismissed by the appellate court not on merits but on the ground of want of prosecution.

It was a question entirely different from the question what was the date of the final decree or order of the appellate court, the answer to which, does not at all depend upon whether there was a merger of the decree of the trial court in the decree or order of the appellate court. The remark that the order dismissing the appeal did not deal with the matter of the suit 'judicially' was made for the sole purpose of showing that there was no merger and their Lordships did not at all intend to lay down that the dismissal for want of prosecution did not amount to a final order of the Judicial Committee. The question whether it amounted to a final order of the Judicial Committee was not even raised before their Lordships.

8. In Sachindra Nath Roy v. Maharaj Bahadur Singh, AIR 1922 PC 187, an appeal from a decree of a High Court dated 26-8-1905 was dismissed by the Judicial Committee for want of prosecution on 16-4-1910 and their Lordships simply re'jos upon the decisions in Abdul Majid's and Batuk Nath's cases and held that the period of limitation run.; from the date of the decree appealed against and not from that of its dismissal for want of prosecution. This decision simply confirms what was laid down ir, the previous two decisions of the Judicial Committee and does not add anything to it.

In Husain Asghar Ali v. Ramditta Mal , a decree was passed by the trial court on 17-11-1920, it was appealed against, the appeal abated on or about 11-8-1924, the appellate court on 18-10-1924 held that it had abated and it was held by the Judicial Committee that the application for execution of the decree made on 27-10-1926, i.e., within three years of 18-10-1924, was within time. Though the abatement was automatic and did not depend upon any order of the appellate court, in fact there was an order declaring that the appeal had abated and that was treated by their Lordships as the final order in the appeal. They distinguished the case of Batuk Nath, ILR 36 All 284: (AIR 1914 PC 65), on the ground that there had been no order of their Lordships, and the case of Abdul Majid, ILR 36 All 350: (AIR 1914 PC 66), on the ground that the order declaring that an appeal stands abated is a judicial order and observed at page 89 (of Ind App): (at p. 70 of AIR) that

'when an order is judicially made by an Appellate Court which has the effect of finally disposing of an appeal, such an order gives a new starting point for the period of limitation prescribed by Article 182(2)'.

We find nothing in the observations of the Judicial Committee in any of the cases suggesting that in the present case the period of limitation does not run from the date of dismissal of the appeal for want of prosecution.

9. The contrary view was taken in Ram Ran Vijav Prasad Singh v. Parmatma Nand Singh, 1945 All WR HC 34. The facts in it were that a decree was passed by a Subordinate Judge on 30-9-1924 and an appeal from it was dismissed on 13-5-1926 on account of failure to deposit the printing charges. Mulla and Yorke, JJ. held that the period of limitation for execution ran from 30-9-1924 and not from 13-1-1926 and relied upon the decision in the case of Abdul Majid (supra). With great respect we arc unable to agree that the observations made by their Lordships and quoted above were applicable to the facts before the learned Judges.

Further we find that the learned Judges confined their attention to the question whether the dismissal of an appeal for failure to deposit the printing charges amounted to a decree or not; they did not at all consider whether it amounted to a final order passed by the appellate court. Article 182(2) could not be said to be not applicable merely because there was no final decree by the appellate court, With regret we must say that the case does not lay dawn the correct law and must be overruled. An order dismissing an appeal for want of prosecution was held to be a judicial order disposing of the appeal, by Raghubar Dayal and Agarwala JJ. in Ram Kumar v. Rudra Dutt : AIR1951All493 .

We may point out that the learned Judges put the case of the decree-holder lower by considering whether the order was judicial or not. Their observation that the order was a final order because no further appeal was provided against it is of doubtful correctness. We respectfully agree with their conclusion that it was a final order, though not quite with the reasons given by them in support of it. An order terminating an appeal does not cease to be a final order because an appeal from it is provided for, If an appeal is provided for and is filed, it is still a final order, though the decree-holder will stand in no need of relying upon it because he can rely upon a subsequent date on which the further appeal is disposed of.

In Raghu Prasad Singh v. Jadunandan Prasad Singh. AIR 1921 Pat 6, Dawson Miller C. J. and Ross, J., held that an order dismissing an appeal for non-payment of printing costs is a final orderwithin the meaning of Article 182(2), but Macpherson and Dhavle JJ. took the contrary view in Hirday Narayan Singh v. Rao Maheshwari Prasad Singh, AIR 1932 Pat 251, placing entire reliance upon the cases of Batuk Nath, ILR 36 All 284: (AIR 1914 PC 65) and Abdul Majid ILR 36 All 350: (AIR 1914 PC 66) (supra). In Krishna Kant Prasad v. Radhey Singh, AIR 1938 Pat 79, Fazl Ali and Rowland JJ. computed the period of limitation under Article 182) from the date of the dismissal of the appeal on the ground of its being insufficiently stamped; they relied upon the cases of Nagendra Nath Dey and Kameshwar Singh Bahadur, AIR 1931 Pat 422.

An order under Order 41, Rule 17, dismissingan appeal in default was held by Dalip Singh andSale JJ. to be a final order within the meaning ofArticle 182(2) in Rank of Upper India Ltd. v. SriKrishna Das, AIR 1935 Lah 771. The learned Judgesdistinguished the cases of Batuk Nath ILR 36 All284: (AIR 1914 PC 65) & Abdul Majid, ILR 36 All350: (AIR 1914 PC 66). In Harkishan Dass v. KirpalShah , Kapur J., computedthe period under Article 182(2) from the date of dismissal of an appeal in default. BhawaniporeBanking Corporation Ltd. v. Gouri Sharma : [1950]1SCR25 & Ramesh Chandra v. Ghanshiam Dass : AIR1955All552 are not helpful at all becausethey did not deal with the question under consideration.

10. We rely not only upon the authorities mentioned above but also upon reason. Sir Dinshah Mulla in the case of Nagendra Nath , gave the following reason for not forcing a decree holder to execute his decree while it is under challenge:

'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.''

11. This reason applies whether the appeal is dismissed on merits after contest or is dismissed in default or for want of prosecution. So long as an appeal exists the decree-holder should not be compelled to execute the decree. It should not be left in the hands of the judgment-debtor to file an appeal and thereby induce the decree-holder not to execute the decree and then by getting the appeal dismissed in default or for want of prosecution after the expiry of three years from the date of the decree, make an application for its execution barred by time.

If the decree-holder is justified in not putting the decree into execution on, account of the pendency of the appeal it should not be held after some time that owing to the disposal of the appeal in a particular manner it must be deemed not to have come into existence at all. So long as an appeal has not been admitted, the decree is not put into jeopardy and if the decree-holder refrains from putting it in execution, he does so at his own risk.

12. In the result we hold that the period of limitation for execution of the decree was to be computed from 3-11-1952. This appeal, therefore, fails and is dismissed with costs throughout.

Upadhya, J.

13. I have had the advantage of reading the judgment proposed by my brother Desai and I respectfully agree with the conclusions reached by him.

14. The decision in 1945 All W. R. H. C. 34 appears to be based on the decision of the Privy Council in ILR 36 All 350: (AIR 1914 PC 66). Shortly before this case the Privy Council had pronounced its opinion on the same subject in ILR 36 All 284: (AIR 1914 PC 65). The judgment in this case was delivered by Sir John Edge. He expressly referred to Rule V of the Order in Council under which an appeal stood dismissed 'without further order' if an appellant or his agent did not take effectual steps for the prosecution of the appeal. Rule V of the Order in Council dated 15th June 1853 reads as follows:

'That a certain time be fixed within which it shall be the duty of the appellant or his agent to make such application for the printing of the transcript, and that such time be within the space of six calendar months from the arrival of the transcript and the registration thereof in all matters brought by appeal from Her Majesty's colonies and plantations east of the Cape of Good Hope, or from the territories of the East India Company, and within the space of three months in, all matters brought by appeal from any other part of Her Majesty's dominions abroad and that in default of the appellant or his agent taking effectual steps for the prosecution of the appeal within such time or times respectively the appeal shall stand dismissed without further order.'

15. An appeal had been taken to His Majesty in Council from a decree of the High Court of Allahabad, but as necessary steps were not taken in the prosecution of the appeal, it stood dismissed. Sir John Edge observed:

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

16. It is thus obvious that the dismissal of the appeal under Rule V of the Order in Council did not entail or require any order by the Judicial Committee of the Privy Council itself and the dismissal was an automatic result of the default in view of the rule mentioned by His Lordship. Batuk Nath's case, ILR 36 All 284; (AIR 1914 PC 65) does not appear to have been placed before the Bench of this Court which decided Ram Ran Vijay Prasad Singh's case, 1945 All WR HC 34. The learned Judges were referred to Abdul Majid's case, ILR 36 All 350: (AIR 1914 PC 66). Though Sir John Edge was a member of the Judicial Committee which heard the case the judgment was actually delivered by Lord Moulton. His Lordship did not consider it necessary to expressly refer to Rule V of the Order in Council, but from his observations it is clear that His Lordship was alive to the fact that no decision by the Judicial Committee itself was necessary to dispose of the appeal in the event of a default by the appellant. Lord Moulton observed:

'The order dismissing the appeal for want of prosecution did not deal judicially with the matter of 'the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognized authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all.'

17. When making this observation his Lordship 'evidently had in view Rule V according to which the appellant's default resulted in an automatic dismissal of the appeal 'without further order'. The attention of the learned Judges who decided Ram Ran Vijay Prasad Singh's case, 1945 Ml WR HC 34 was evidently not invited to Rule V of the Orderin Council which, though not expressly referred to, provided the basis for the pronouncements made by Lord Moulton. Nor was Batuk Nath's case, ILR 36 All 284: (AIR 1914 PC 65) placed before them. I believe that if that had been done the difference between the dismissal under Rule V for want of prosecution and the dismissal of an appeal under the Rules of the Court and the Code of Civil Procedure would have attracted their notice.

18. The rule laid down by the Judicial Committee in appears to be more applicable to the facts of the case now before us. In that case an appeal in an irregular form and insufficiently stamped was admitted and heard in due course. At the hearing of the appeal an objection was taken to its form. The appellant prayed for leave to amend the appeal but this was refused. The appeal was then dismissed both on the ground of irregularity and upon the merits, and the dismissal was embodied in a decree of the High Court. Considering the effect of the appeal on the question of limitation under Article 182 of the Limitation Act, their Lordships of the Privy Council observed:

'There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt 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 and incompetent. The1920 appeal was admitted and was heard in due course; and a decree was made upon it.'

19. The decision of the Privy Council was evidently based mainly on the fact that the appeal had been 'admitted and heard in due course and a decree was made upon it'.

20. A Full Bench of this Court in Hari Har Prasad Singh v. Beni Chand : AIR1951All79 had occasion to consider a kindred question in a case where a memorandum of appeal had been rejected for want of proper court fee. P. L. Bhargava, J. drew a distinction between a 'memorandum of appeal' and 'an appeal' and said that if a memorandum of appeal was rejected there was in fact no appeal at all. He observed:

'A memorandum of appeal which is found to be defective for want of proper court-fee and is not admitted in view of Sec. 4, Court-fees Act, and is returned or even 'rejected' on that ground, cannot be treated as an appeal when the Court has refused to admit or register it as an appeal. In such a case it must be held that there has been no appeal from the decree sought to be executed.'

21. Once an appeal is admitted and registered it awaits its disposal by an order o the appellate court. If such an order is a final order Article 182(2) of the Limitation Act evidently applies. In the present case the appeal was admitted and a notice for the hearing of the appeal was actually issued to the respondent. It was dismissed by an order of the Court for want of prosecution because charges for translation and printing were not deposited by the appellants within the time allowed. In the circumstances it could not be said that there was no appeal at all. I agree with my learned brother that it is not necessary that the order disposing of an appeal must he an order disposing of the appeal on merits. All that the statute requires is that it should be an order of the Court finally disposing of the appeal so far as the appellate court is concerned. Such an order was passed in this case.

22. I agree, therefore, that the appeal should foe dismissed with costs.

23. BY THE COURT : In the result we hold that the period of limitation for execution of the decree was to be computed from 3-11-1952. This appeal, therefore, fails and is dismissed with costs throughout.


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