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Muhammad Hasan and ors. Vs. Nur-ul-hasan - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Judge
Reported in(1886)ILR8All573
AppellantMuhammad Hasan and ors.
RespondentNur-ul-hasan
Excerpt:
execution of decree - limitation--act xv of 1877 (limitation act), schedule ii, no. 179 (2). - .....us), and the other set of pre-emptors, and obtained a decree for a moiety of the property. this decree is dated the 7th march 1882. out of the defendants, the second set of pre-emptors alone appealed, and their appeal was dismissed on the 12th may 1882. the decree-holders (respondents) applied to execute their decree on the 12th may 1885, and this application, being objected to by the purchaser, the appellant before us, was disallowed by the munsif, but on appeal to the lower appellate court the munsif s order was reversed, and execution granted against nur-ul-hasan, the purchaser of the property. he has now preferred this appeal on the ground that the application for execution is barred, having been filed more than three years after the passing of the decree. in my opinion the appeal.....
Judgment:

Oldfield, J.

1. The matter in this appeal relates to the execution of a decree obtained for a right of pre-emption. It appears there were two sets of pre-emptors. The first set are respondents before us. They brought a suit against the vendors, the vendee (who is the appellant before us), and the other set of pre-emptors, and obtained a decree for a moiety of the property. This decree is dated the 7th March 1882. Out of the defendants, the second set of pre-emptors alone appealed, and their appeal was dismissed on the 12th May 1882. The decree-holders (respondents) applied to execute their decree on the 12th May 1885, and this application, being objected to by the purchaser, the appellant before us, was disallowed by the Munsif, but on appeal to the Lower Appellate Court the Munsif s order was reversed, and execution granted against Nur-ul-Hasan, the purchaser of the property. He has now preferred this appeal on the ground that the application for execution is barred, having been filed more than three years after the passing of the decree. In my opinion the appeal fails, because Article 179, Clause (2), being the limitation law applicable, the time should run from the date of the decree of the appellate Court. It is contended that that law is inapplicable because the appellant did not appeal from the original decree; and so far as he is concerned, the respondents ought to have executed the decree irrespectively of the fact that an appeal had been preferred by some of the defendants. On this point certain decisions have been brought to our notice.--Hur Proshaud Roy v. Enayet Hossein 2 Cal. L. Rep. 471; Sangram Singh v. Bujharat Singh I.L.R. 4 All. 36. I think those cases are distinguishable from the present case as in this case, although only one set of defendants appealed against the original decree, the grounds of such appeal imperiled the rights of the plaintiffs-respondents which they had obtained by a (sic) decree against all the defendants. Had the appeal of the second Bet of pre-emptors succeeded, the property decreed to the respondents would have passed away from them, and there would have been no decree for them to execute against the present appellant. I think this circumstance marks the distinction between the present case and the cases cited; but for my own part I think the terms of Article 179, Clause (2), are so clear and distinct that they scarcely admit of any such distinction being drawn. Under that law the period for the execution of a decree will begin to run, where there has been an appeal, from the date of the final decree or order of the Appellate Court. It contains nothing as to whether the appeal shall have been made by all the parties, or by one, or how far the Appellate Court's order may or may not affect the rights of parties, who have not appealed. It seems to me to give a plain and clear rule that in all cases where there has been an appeal, the date of the final decision of the Appellate Court shall be the date from which the time for execution will begin to run. In support of the view I am taking, that in the present case limitation should run from the date of the Appellate Court's decree, I may refer to Mullick Ahmed Zumma v. Mahomed Syed I.L.R. 6 Cal. 194 and Ram Lal v. Jagannath Weekly Notes 1884 p. 138.

Mahmood, J.

2. I have arrived at exactly the same conclusion as my learned brother, but I wish to say that the ground of distinction which he has drawn between the present case and those referred to is, to my mind, very clear. The present case is not necessarily inconsistent with what was ruled there. In the 2nd clause of Article 179 there are no words limiting or qualifying the application of those words to decrees in which only one or more of the parties have appealed; the clause as framed must be looked upon as intended to apply, without any exceptions, to decrees from which an appeal has been lodged by any of the parties to the original proceedings; and I should say the clause should certainly be applied to cases such as the present, where the whole decree was imperiled by the appeal.

3. I think the decree-holders in this case might, as a consequence of the appeal by the rival pre-emptors, claim, by analogy, the same footing with reference to limitation for executing their decree as a decree-holder who has taken a step in aid of execution, which is another ground for extending the time for execution, as provided in the 4th clause of the same article. This I mention only by way of analogy, and regarding it as such, I think it was sufficient to justify the decree-holders not applying for execution before the appeal was decided.

4. Under these circumstances the application for execution is within time, and I agree with my learned brother's order dismissing this appeal with costs.


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