1. These are two appeals by two sets of judgment-debtors whose objections directed against an application for execution have been dismissed by the Court below.
2. It appears that Suit No. 88 of 1932 was instituted by Goshain Ram Charan Das against several sets of defendants. By means of this suit the plaintiff claimed recovery of distinct items of property from different defendants on the ground that they belonged to a Math of which he was the rightful Mahant. Some of the defendants appear to have admitted the claim made by the plaintiff while others resisted the claim. In the result the trial Court found that the plaintiff had failed to establish his claim to the Mahantahip of the Math and accordingly the plaintiff's claim was decreed as against those defendants who had admitted his claim while it was dismissed as against the other defendants who had contested the claim Goshain Ram Gharan Das came up in appeal to the High Court against the dismissal of a part of his claim and impleaded all the defendants as respondents to the appeal. His appeal, viz., P. A. No. 397 of 1934, was however, dismissed by the High Court on 30 11-1937. Thereafter he appears to have filed an application for leave to appeal to His Majesty in Council. Eventually this application was unsuccessful and was dismissed on 4-9-1942. The decree holder applied for execution of his decree on 28 8-1945. This application appears to have been dismissed for default on 19 10 1945. Thereafter a second application for execution was filed on 25 5 1946. The decree-holder appears to have obtained possession of the properties decreed to him on 11-6 1946. It appears that at this stage the judgment-debtors were not given any notice of the application for execution before possession was delivered by the Court Amin to the decree-colder. The judgment, debtors, however, filed their objections against the execution of the decree on 6.8.1946, but they were dismissed on 14.9.1946, as the parties were absent on that date. On the same date, i. e., 14.9.1946, the judgment-debtors appeared in Court and filed their objections to the effect that the application for execution was barred by time. The contention of the judgment-debtors in effect was that the first application for execution filed on 28-8 1945, was not in accordance with law inasmuch as it was made more than three years after the date of the decree of the High Court passed in appeal. That being so the dismissal for default of that application on 19-10 1915, could not be taken into account for purposes of limitation. The main question, therefore, raised by the objections filed on behalf of the judgment-debtors is whether the first application for execution dated 28.8.1945, was according to law. This application was admittedly beyond three years of the date of the dismissal of the appeal by the High Court. On the other hand it was within three years of the date of the dismissal of the application for leave to appeal to His Majesty in Council. If time is to be reckoned from the date of the dismissal of the application for leave to appeal, i. e., from 4-9 1942, the execution application was within time. The Court below accepted the contention urged on behalf of the decree-holder that the time began to run from the date of the final order passed on the application for leave to appeal to His Majesty in Council, i e., from 4-9-1942, and the application was therefore, within time. In this view of the matter the objections were dismissed. Against this order the judgment-debtors have come up in appeal to this Court. 3. We have heard learned counsel for the parties. The only substantial question which we have to decide is whether in a case like the present the first application for execution made on 28-8-1945, should be deemed to have been made within time. As mentioned above, if time is to be reckoned from 30-11-1937, when the High Court dismissed the appeal, this application is clearly out of time On the other hand, if time is to be reckoned from 4.9.1942, it was clearly within three years of that date and the net result of that would be that the second application for execution filed on 35 5-1946 would be within time. Learned counsel for the appellants has relied strongly upon the language used in Article 182, Limitation Act. Clause (2) of this Article reads thus :
'(Where there has been an appeal) the date of the final' decree or order of the Appellate Court .....................'
4. The crucial question, therefore, is, what is the interpretation to be put upon the expression 'where there has been an appeal?' Learned counsel for the appellants has relied upon the decision of their Lordships of the Privy Council in Nagendra Nath v. Suresh Chandra, 1932 ALL L. J. 643, where Sir Dinsbah Mulla delivering the judgment of the Board is reported to have observed at p 646 :
'The Station of periods of limitation must always be to some extant 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 Lordshipa think, the only safe guide.'
5. In the light of this observation the expression 'where there has been an appeal' has to be construed according to the strict grammatical meaning of the words used by the legislature. As observed by their Lordships, equitable considerations are entirely out of place. Next learned counsel for the appellants has relied upon Kota ghiri Venkata, Subbamma Rao v. Vellanki Venkatarama Rao, 24 Mad. 1, in which at p. 12 their Lordships of the Privy Council have pointed out that there is a clear distinction between an application for leave to appeal and an appeal.
6. Learned counsel for the respondent has contended that the application for leave to appeal when filed along with the memorandum of the proposed appeal constitutes the presentation of an appeal. He has contended that the expression used by the legislature is 'where there has been an appeal' and not 'where the memorandum has been presented and admitted,' Learned counsel has, however, not been able to invite our attention to any relevant case law on the point which might support his contention.
7. We have given due consideration to the language used in Clause (2) of Article 182. Limitation Act and bearing in mind the observation made by their Lordships of the Judicial Committee referred to above we must interpret it in its strict grammatical sense. We do not think we shall be justified in holding that there was in the present case an appeal which was filed and which came to an end on 4.9.1942. It follows therefore, that the date of the final order passed on the application for leave to appeal, i. e., 4.9.1942, cannot be taken into account as marking the commencement of the period of limitation for an application for execution. Limitation for the execution application filed on 28.8.1945, must, therefore, be held to start from 80-11-1937, the date when the High Court dismissed Appeal No. 397 of 1934. Viewed in this light the first application for execution was barred by limitation. The result, therefore, is that the application for execution filed on 28-8-1945, must be held to be barred by limitation. The objections filed by the judgment-debtors should, therefore, have been allowed by the Court below.
8. Accordingly we allow the appeals, set aside the order dated 12-12-1946, passed by the Court below and allow the objections with costs throughout.