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Ram Chandra Naick and ors. Vs. Syed Nazar Ali - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in94Ind.Cas.390
AppellantRam Chandra Naick and ors.
RespondentSyed Nazar Ali
Excerpt:
limitation act (ix of 1998), schedule i, article 182(2) - withdrawal of appeal. - - 1. having heard 'counsel for the appellants in this case we are satisfied that the judgment of the learned judge of this court is correct. notice was ordered to issue and by reason of failure to secure service of notice the matter did not come up before this court till the 8th november 1920. on that date an order was passed in the following terms:.....the respondent here.3. an appeal was brought to this court against the decree of the subordinate judge dated the 23rd of april 1918, and on the 10th of february 1920, the counsel for the appellants filed an application in this court, saying that he desired, to withdraw the appeal. he asked the leave of the court to withdraw it. notice was ordered to issue and by reason of failure to secure service of notice the matter did not come up before this court till the 8th november 1920. on that date an order was passed in the following terms:on the application of mr. muhammad yusif, this appeal is withdrawn. the appellant is to pay the costs of the respondents, such costs to be calculated up to the date upon which the respondents had notice of the proposed withdrawal of the appeal.4. after.....
Judgment:

1. Having heard 'Counsel for the appellants in this case we are satisfied that the judgment of the learned Judge of this Court is correct.

2. The question raised is one of limitation. A decree was passed on the 23rd of April 1918 against a number of persons including the appellants here. That was a decree for costs. This decree was afterwards transferred by the decree-holder to one Saiyid Nazar Ali who figures as the respondent here.

3. An appeal was brought to this Court against the decree of the Subordinate Judge dated the 23rd of April 1918, and on the 10th of February 1920, the Counsel for the appellants filed an application in this Court, saying that he desired, to withdraw the appeal. He asked the leave of the Court to withdraw it. Notice was ordered to issue and by reason of failure to secure service of notice the matter did not come up before this Court till the 8th November 1920. On that date an order was passed in the following terms:

On the application of Mr. Muhammad Yusif, this appeal is withdrawn. The appellant is to pay the costs of the respondents, such costs to be calculated up to the date upon which the respondents had notice of the proposed withdrawal of the appeal.

4. After this an application was made on the 24th September 1923 to execute the decree for costs up to the amount mentioned in the decree of the Subordinate Judge of the 23rd of April 1918. The plea was taken that the application for execution was time-barred having been made more than three years after the date of the decree sought to be executed.

5. On the other side the contention was that limitation was saved by the proceedings which had taken place in appeal in this Court and it was argued that the true date from which limitation ran was the 8th November 1920 the date on which this Court allowed the appeal to be withdrawn.

6. The question is to be determined with reference to the language of Article 182 of the Schedule to the Limitation Act, and the particular clause to which attention has to be directed is Clause 2 in col. 3 of the Schedule corresponding to this Article. It is there laid down that where there has been an appeal, time for execution of decree begins to run from the date of the final decree or order of the Appellate Court or the withdrawal of the appeal.

7. The learned Judge of this Court held that the appeal was withdrawn on the 8th of November 1920 when this Court passed an order permitting it to be withdrawn. In our opinion the law has been correctly interpreted and we hold with the Judge that in this case limitation did not begin to run till the 8th of November 1920.

8. We dismiss the appeal accordingly with costs including in this Court' fees on the higher scale.


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