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Laxmichand Jagannath Pandey Vs. Challu Raisa - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtMadhya Pradesh High Court
Decided On
Case NumberMisc. (Second) Appeal No. 272 of 1974
Judge
Reported inAIR1978MP184; 1978MPLJ272
ActsLimitation Act, 1908 - Sections 15 - Schedule - Article 182; Code of Civil Procedure (CPC) - Order 9
AppellantLaxmichand Jagannath Pandey
RespondentChallu Raisa
Appellant AdvocateA.R. Choube, Adv.
Respondent AdvocateV.S. Shrouti, Adv.
DispositionAppeal dismissed
Cases ReferredFirm Dedhraj Lachminarayan v. Bhagwandas
Excerpt:
.....called upon to decide the case like the present one before us where the appeal was not from the decree sought to be executed, but from the order made on an application to set aside the decree whichwas passed ex parte. their lordships clearly laid down that the provisions of clause (2) of article 182 were not attracted and the limitation was to start running from the date of the original decree which was sought to be executed. we cannot infer such broad proposition like that either from the observations made by their lordships of the judicial committee in nagendranath's case (air 1932 pc 165) or from the language used in clause (2) ofthe article. but the division bench in that case clearly distinguished a case of the type which is before us. daiba charan parui, air 1927 cal 904 the..........an order made in miscellaneous proceedings under order 9, rule 13 refusing to set aside the ex parte decree?'2. according to the rules of this court, such miscellaneous second appeals are ordinarily heard by a single bench and was accordingly laid before the learned single judge (hon'ble raina, j.). the learned single judge was, however, of the opinion that since some high courts have taken the view that the word 'appeal' in clause (2) of article 182 does include an appeal from an order refusing to set aside the ex parte decree and that there being sufficient scope to construe the word 'appeal' in the said manner in view of certain observations made by their lordships of the privy council in the case of nagen-dranath dey v. sureshchandra dey air 1932 pc 165, the matter required full.....
Judgment:

Bajpai, J.

1. This miscellaneous second appeal arises out of a reference and it raises a question as to the construction of the word 'appeal' in Clause (2) of Article 182 of the Indian Limitation Act, 1908. The question posed is as under:

'Whether the word 'appeal' as used in Clause (2) of the Article means an appeal from the decree which is sought to be executed or could it include even an appeal from an order made in miscellaneous proceedings under Order 9, Rule 13 refusing to set aside the ex parte decree?'

2. According to the rules of this Court, such miscellaneous second appeals are ordinarily heard by a single Bench and was accordingly laid before the learned single Judge (Hon'ble Raina, J.). The learned single judge was, however, of the opinion that since some High Courts have taken the view that the word 'appeal' in Clause (2) of Article 182 does include an appeal from an order refusing to set aside the ex parte decree and that there being sufficient scope to construe the word 'appeal' in the said manner in view of certain observations made by their Lordships of the Privy Council in the case of Nagen-dranath Dey v. Sureshchandra Dey AIR 1932 PC 165, the matter required full consideration by a larger Bench, particularly in the absence of any decision of this Court or the Supreme Court directly on the point involved. However, the Judicial Commissioner's Court at Nagpur had taken the view in the case of Jabar-khan v. Rahimkhan AIR 1922 Nag 197 (1) that the words 'where there has been an appeal' used in Clause (2) of the Article have been referred to an appeal from the decree or order sought to be executedand do not include an appeal from an order dismissing the application to set aside an ex parte decree. Similar is the view taken by the High Courts of Calcutta, Madras and Patna.

3. The facts giving rise to the appeal are that an ex parte decree was passed against the appellant towards rent and mesne profits on 5-3-1959. The appellant moved an application for setting aside the ex parte decree which was dismissed by the trial Court on 30-4-1960. He further preferred an appeal against the said order which was also dismissed by the Additional District Judge on 23-7-1960. Thereafter, the respondent decree holder filed an application for execution of the decree on 9-4-1963. This application was dismissed on 21-10-1964 and thereafter successive applications for execution were filed. The last one was filed on 16-6-1970 and in the course of proceedings on the said application, the appellant judgment debtor raised an objection that the execution proceedings brought by the decree holder were barred by limitation, because the first application itself, having been moved after 3 years from the date of the decree sought to be executed, was barred by limitation. It would be significant to note that there was no order of stay or injunction prohibiting the execution of the decree during the proceedings of the application under Order 9 Rule 13 of the Civil P. C. or the appeal arising out of the same. It was not disputed either before the learned single judge or before us that the subject-matter was governed by the provisions of Article 182 (2) of the old Limitation Act and if the first application for execution moved on 9-4-1963 is held to be barred by limitation, the successive applications moved thereafter will also be hit by bar of limitation and the execution accordingly could not be proceeded,

4. The contention raised on behalf of the judgment debtor was that the word 'appeal' used in Clause (2) of the Article cannot be read de hors of the context in which it has been used and must, therefore, be confined to the decree which is sought to be executed and since no appeal against the decree was preferred in this case, the limitation for filing an application for execution started running from the date of ex parte decree itself and was not stopped due to the institution and pendency of the proceedings under Order 9 Rule 13 of the Civil P. C. and the date of the decision of the appeal preferred against the order refusing to set aside the decree could not, therefore, become the starting point of limitation.

5. The contention raised on behalf of the decree holder was that since the word 'appeal' has not been qualified by using the words 'against the decree sought to be executed,' it may include any other appeal such as the one preferred in the present case against the order refusing to set aside the ex parte decree and accordingly the first application moved by the decree holder was within limitation having been preferred within 3 years from the date of the final order made in the said appeal. The argument on behalf of the decree holder was based on the proposition that so long as the finality of the decree sought to be executed was sub-judice even in the proceedings under Order 9 or appeal arising out of such proceedings, the decree holder was not bound to proceed with the execution of such decree without awaiting the final decision of the said appeal. The contention raised was that a party could not be expected and held bound to prosecute a proceeding when it is apparent that there was every likelihood of the same being rendered futile. Reliance was placed on the observations made by the Privy Council in the case of Nagendranath v. Sureshchandra AIR 1932 PC 165 at P. 167 which are as reproduced below-:

'There is, in their Lordships' opinion no warrant for reading into the words quoted (where there has been an appeal) 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. 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.'

It would be significant to mention that despite the aforesaid observations made by the Privy Council, various High Courts have distinguished the same and have held that these observations could not be construed so as to include appeals which are not preferred against the decree sought to be put in execution.

6. In our opinion, the word 'appeal' as used in Clause (2) of Article 182 cannot be read so as to include even an appeal from an order refusing to set aside the ex parte decree. It is true that the plain words in a statute prescribing limitation have to be construed as they mean and there is no warrant in reading into the word 'appeal' any qualification. But it is also equally true that the words used by a statute cannot be read de hors of the context.

7. Shri Choubey, learned counsel for the appellant, contended that in view of the observations made in the case of Nagendranath decided by the Privy Council, (AIR 1932 PC 165), no such view can be taken, because the decree holder cannot be compelled to pursue the thorny path of execution which may lead to no advantage if ultimately the final result of the proceedings under Order 9 Rule 13 of the Civil P. C. was to leave the decree holder to no advantage. According to Shri Choubey, the intelligible rule laid down by the Privy Council cannot be overlooked and by implication, the aforesaid observations made by the Privy Council lead to the conclusion that the word 'appeal' used in Clause (2) of the Article may include any and every such appeal which might arise out of the connected proceedings irrespective of the fact that the same may not be against the actual decree sought to be put in execution so long as it could be shown that the decision of such appeal may ultimately affect the decree sought to be put in execution.

8. This question in the context of an appeal against the order refusing to set aside the ex parte decree has not been considered till now by the Supreme Court or by this Court and certainly requires careful examination. Since reliance has been mainly placed on the observations made by the Privy Council, it would be necessary to refer to the facts of the case before the Privy Council. Without going into details, the facts in the said case were as follows: Madan Mohan was the plaintiff in a mortgage suit. There were certain other co-mortgagees, who were impleaded as defendants Nos. 11 and 12 in the said suit. The claim of the plaintiff Madan Mohan was that since the other mortgagees i.e. defendants Nos. 11 and 12 had assigned their interest in his favour, he was consequently entitled to add to his own claim, the share of the mortgage money as was allowed to defendants Nos. 11 and 12; his claim wasrejected and a final decree was made in favour of the mortgagees. Madan Mohan, being aggrieved by this, preferred an appeal against the said decree claiming that the decree should not have been made in favour of other co-mortgagees. Since the dispute in the appeal was confined in between the co-mortgagees, the judgment debtors were not made parties to the said appeal. Apart from this, the appeal was also found to be defective being insufficiently stamped and for other reasons also. The grievance in the appeal was limited to the question of assignment and was ultimately decided against the appellant. The appeal was dismissed by the appellate Court on the ground of irregularity as well as on merits. After the decision of the appeal when the co-mortgagees who were also the decree holders along with the plaintiff presented the application for execution of the decree, the said application was opposed by the judgment debtors on the ground that it was barred by limitation. This objection regarding the limitation was sought to be met by contending that since ah appeal was preferred by the plaintiff against the final decree, which was being executed the provisions of Clause (2) of Article 182 will come into play and the limitation will start running from the date of decision of the appeal and not from the date of the original final decree.

9. In the aforesaid context, their Lordships of the Judicial Committee observed that the words 'where there has been an appeal' (sic) time is to run from the date of decree of the appellate Court, because there was no warrant in reading into the word 'appeal' any qualification either as to the character of the appeal or as to the parties to it. Thus, it is apparent that the ratio of the decision of their Lordships was not that an appeal which is not against the decree sought to be executed is also to be included in the word 'appeal'. The legal position stated is that the word 'appeal' is not to be read with any other qualification as to character of the appeal or as to the parties to it. Even if the appeal was defective it was still an appeal against the decree in question, and the date of final order made in the same will naturally be the date of commencement of limitation. In the aforesaid case, the Judicial, Committee was not called upon to decide the case like the present one before us where the appeal was not from the decree sought to be executed, but from the order made on an application to set aside the decree whichwas passed ex parte. In the case before their Lordships, the appeal was against the mortgage decree itself. In their opinion, the character of the appeal was absolutely immaterial. It was also immaterial as to who were made parties to it and whether or not the said appeal was to affect the entire decree. What waa enough for attracting Clause (2) of the Article in that case was that there was an appeal against the decree sought to be executed. In our opinion, therefore, the observations made by the Judicial Committee cannot be relied on as authority for the proposition that the appeal contemplated by Article 182 (2) of the Old Limitation Act may include any appeal even if it is not against the decree which is the subject-matter of execution.

10. Similar has been the reasoning adopted by Hon'ble B. K. Mukerji, J. (as he then was) for distinguishing the decision of the Privy Council in the case of Haris Chandra Chowdhury v. Dines Chandra Chowdhury (AIR 1946 Cal 375). The Division Bench of the Calcutta High Court in that case, after discussing the aforesaid position, held that the observations made by the Privy Council in Nagendranath's case (AIR 1932 PC 165) (supra) could not be relied on for applying Clause (2) of Article 182 to a case where no appeal was preferred against the decree sought to be executed but was against the order rejecting the application for setting aside the ex parte decree under Order 9 Rule 13 of the Civil P. C.

11. The other case, which needs reference, is of Bhawanipore Banking Corporation Ltd. v. Gouri Shankar Sharma, AIR 1950 SC 6. This citation has been relied on by both the parties in support of their respective contentions. The decree holders rely on the same by pointing out that their Lordships of the Supreme Court have made clear pronouncement of the legal position regarding the applicability of Article 182 (2), being not available in cases of appeal arising out of collateral proceedings despite the fact that the decision on the same may indirectly affect the decree. In the case before their Lordships no appeal was preferred against the original decree which was sought to be executed. The appeal preferred was against an order rejecting the application moved by the judgment debtor under the Money-Lenders Act for reopening of accounts and giving the relief of scaling down the debt in question. That application was dismissed in default and restoration of the same having been refused, an appeal was preferred. Their Lordships clearly laid down that the provisions of Clause (2) of Article 182 were not attracted and the limitation was to start running from the date of the original decree which was sought to be executed. The learned counsel appearing on behalf of the judgment debtor, however, contended that while expressing the aforesaid view that the appeal arising out of collateral proceedings will not attract the provisions of Clause (2) of Article 182, their Lordships have stated that the provisions are not attracted to cases where the appeal preferred arose out of the collateral proceedings or had no immediate or direct connection with the decree. The argument was that since the result of the proceedings setting aside the ex parte decree had a direct connection with the decree sought to be executed, the observations made in the said case can be fully relied on for contending that at least to such a case where the appeal arose out of proceedings under Order 9 Rule 13 of the Civil P. C. the provisions of Clause (2) of the Article apply, because the decree made ex parte is to be immediately affected by the decision of such appeal. In our opinion, it is not possible to construe the observations made by their Lordships in the manner suggested by the learned counsel for the appellant-judgment debtor. An appeal against the decree sought to be executed has an immediate and direct connection with the decree impugned, and it is not so in case of an appeal preferred against the order made under Order 9 Rule 13 of the Civil P. C. The immediate and direct connection of such an appeal is with order refusing to set aside the ex parte decree,

12. It is true that if the appeal against the order refusing to set aside the ex parte decree is allowed, the decree sought to be executed will be set aside. But if this argument is accepted then the limitation could also be extended by an appeal taken against a subsequent decree which might be passed in a suit to set aside the earlier decree sought to be executed, because in that case also the decree sought to be executed will be immediately affected by the decision of the appeal arising out of the subsequent suit to get the said decree set aside. We cannot infer such broad proposition like that either from the observations made by their Lordships of the Judicial Committee in Nagendranath's case (AIR 1932 PC 165) or from the language used in Clause (2) ofthe Article. The learned counsel appearing for the judgment debtor referred to a Division Bench decision of the Allahabad High Court reported in Rameshchandra v. Ghanshiam Das, AIR 1955 All 552. It is true that in that decision an appeal against the preliminary decree was treated sufficient for attracting Clause (2) of the Article, though the appeal was not against the final decree. But the Division Bench in that case clearly distinguished a case of the type which is before us. In para 9 of the said decision, while distinguishing the case before the Bench with the facts of the case involved in the decision of the Calcutta High Court in Fakirchand Mondal v. Daiba Charan Parui, AIR 1927 Cal 904 the learned Judgeg clearly observed that an appeal from dismissal of the application to set aside the decree was distinguishable for the reason that in an appeal against the order dismissing the application to set aside the decree, the question is not whether the decision which resulted in the decree sought to be executed was sound or unsound. The question in such appeal was altogether a different subject matter i. e. whether there was sufficient cause for the absence of the party and thus the same has nothing to do with the merits or demerits of the judgment giving rise to the decree sought to be executed. It is, therefore, clear that the decision of the Bench of the Allahabad High Court also cannot be availed by the judgment debtor in the present case. As a matter of fact, it goes against the contention raised by the appellant.

13. Reliance was placed on certain decisions of the Madras and Patna High Courts wherein it was held that the provisions of Clause (2) of the Article are applicable even to a case where the appeal preferred was against an order refusing to set aside the ex parte decree. A reference was made to the cases reported in A. Veeran Kutti v. P. P. Koya Kutti, AIR 1939 Mad 735 and Nanduri Sriramchandra Rao v. Chintamanibhatla Venkateswara Rao (AIR 1939 Mad 157). In our opinion, it will not be possible to adopt the view earlier taken by the Madras High Court, because thereafter a Full Bench of the same Court has specifically overruled the aforesaid decision in the case of Shivramachari v. Bayya Anjaneya Chhety, AIR 1951 Mad 962 (FB) Similarly, the Full Bench of the Patna High Court has in Rameshwar Prasad Sahu v. Parmeshwa Prasad Sahu, AIR 1951 Pat 1 overruledthe earlier view taken in Firm Dedhraj Lachminarayan v. Bhagwandas, AIR 1937 Pat 337.

14. It is true that if a decree-holder is required to prosecute an ex parte decree even when the proceedings for getting the same set aside are pending either of the original stage or before the appellate Court, there is always a possibility that in case of ex parte decree, being set aside, all efforts made for executing the decree will become futile but for this consideration you cannot re-write the provisions contained in Article 182 of the Limitation Act. You cannot construe the provisions of the statute prescribing limitation de hors of the context. Similarly, you cannot read something which is not there merely on certain equitable consideration because the field covered by the statute prescribing limitation is not of one way traffic. It, on the one hand, bars the remedy and on the other hand creates a valuable right in favour of the other side due to expiry of the period of limitation. Such a right cannot be taken away by the Courts by re-writing the law in the garb of interpretation. If it is felt that certain provisions are causing hardship and resulting in unfairness, it is for the Legislature to consider the situation and to make suitable amendments,

15. For the reasons stated above, we are of the opinion that the provisions of Clause (2) of Article 182 of the old Limitation Act cannot be availed by relying on an appeal preferred against an order refusing to set aside the ex parte decree. However, if there is any order of stay or injunction prohibiting execution of the decree during the pendency of the proceedings under Order 9 C. P. C., the decree-holder may, according to law, claim the benefits of deductions as provided under, Section 15 of the Limitation Act.

16. Since no other point was pressed by either side and the only contention raised for challenging the order impugned made by the lower appellate Court was regarding limitation and the same having been rejected as discussed above, this appeal fails and is dismissed. However, in the circumstances of the case, there will be no order as to costs. Parties will bear their own costs of this appeal.


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