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Jai NaraIn Pershad Vs. Parkashchand and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtDelhi High Court
Decided On
Case NumberLetter Patent Appeal No. 383 of 1971
Judge
Reported inILR1973Delhi491
ActsLimitation Act, 1908 - Schedule - Article 182(2); Code of Civil Procedure (CPC), 1908 - Order 41, Rule 33
AppellantJai NaraIn Pershad
RespondentParkashchand and ors.
Advocates: S.L. Bhatia,; S.P. Aggarwal,; J.P. Aggarwal,;
Cases Referred and Galzari Lal Bhargava v. Murari Lal Bhargava
Excerpt:
(i)limitation act, (1908)) - article 182 (2)--construction of--decree providing several reliefs--appeal against part of reliefs by some of parties only--limitation against unappealed portion--when commences to run. ; that the proper interpretation to place of article 182 (2) would be that where a decree provides several reliefs to different parties, appeal against part of the reliefs by some of the parties only-there being no appeal against the other reliefs-the limitation under article 182(2) against the unappealed portion of the decree will commence to run from the date of the appellate decree. ; that the expression 'where there has been an appeal' must be given its plain meaning and there appears to be no reasonable basis to restrict its scope to the decrees or orders that were the.....aggarwal, j. (1) this is an appeal under clause 10 of the letters patent and arises in execution proceedings. the only point that requires determination in this appeal is one of limitation. the facts relevant to the detrmination of the point in controversy and which are not in dispute are that on 7th january, 1945, jai narain pershad and his father debi pershad filed a suit for dissolution of the partnership styled as m/s. jiwan lal jai narain pershad and for rendition of accounts. on 21st august, 1947 a preliminary decree for dissolution of the partnership and for rendition of accounts was passed. shri r. k. tandon advocate, was appointed as a local commissioner to go into the accounts. on 18th january, 1949, a final decree relating to the accounts and the partnership was passed and a.....
Judgment:

Aggarwal, J.

(1) This is an appeal under clause 10 of the Letters Patent and arises in execution proceedings. The only point that requires determination in this appeal is one of limitation. The facts relevant to the detrmination of the point in controversy and which are not in dispute are that on 7th January, 1945, Jai Narain Pershad and his father Debi Pershad filed a suit for dissolution of the partnership styled as M/s. Jiwan Lal Jai Narain Pershad and for rendition of accounts. On 21st August, 1947 a preliminary decree for dissolution of the partnership and for rendition of accounts was passed. Shri R. K. Tandon Advocate, was appointed as a local Commissioner to go into the accounts. On 18th January, 1949, a final decree relating to the accounts and the partnership was passed and a decree for Rs. 24,446-13-9 was passed in favor of Jai Narain Pershad against Rai Saheb Chiranji Lal and Sons, and a decree for Rs. 39,470-11-6 was passed in favor of R. S. Chiranji Lal & Sons against Jiwan Lal Shinglu. Some other reliefs and directions were also included in the final decree, the details of which are not necessary for decision of this appeal.

(2) On 2nd May, 1949, an appeal was filed by Jiwan Lal Shinglu in the Punjab High Court. The claim in the appeal was that the decree, as far as Jiwan Lal Shinglu was concerned, should be reversed. The said appeal was R.F.A. No.72 of 1949. Which was decided by the Punjab High Court on 8th December, 1959. It may be mentioned that the only claim in that appeal was that the decree for Rs. 39,470-11-6 passed against Jiwan Lal Shinglu should be reduced by Rs. 30,649-2-3. The appeal of Shinglu was partly accepted and the decree against him was reduced by Rs. 24,517-8 As. The judgment of the High Court directed that the decree should be drawn up after the appellant had made up the deficiency of court fees. It appears that after this a stamp of Rs. 1,485 was furnished to the court on 25th September, 1961.

(3) On 22nd November, 1960, Jai Narain Pershad filed an application for the execution of the decree amounting to Rs. 24,446-13-9 against R. S. Chiranji Lal & Sons. The judgment debtors raised an objection that the application for execution was barred by time. The trial judge by his order dated 21st October, 1965 dismissed the objection. The trial Judge found that the limitation period for execution only commenced after the High Court gave its judgment. Against the judgment of the trial Judge, the judgment debtors came in appeal to this Court. The appeal was heard by D. K. Kapur, J. who on 20th September, 1971, found that the execution application is barred by time. Kapur, J. accordingly allowed the appeal and dismissed the execution application as barred by time. Against the order of Kapur, J. the decree holder Jai Narain Pershad has come in appeal under clause 10 of the Letters Patent.

(4) Two points have been mooted in appeal :

(1)the meaning to be given to the expression 'where there has been an appeal' in sub-clause (2) in column 3 of article 182 of the Limitation Act; and (2) whether there were two distinct decrees in the suit and the appeal filed by Shinglu in the decree passed against him had in any way imperilled the decree passed in favor of Jai Narain Pershad.

(5) The decision on the first point really turns on the interpretation of article 182 of the Indian Limitation Act. According to the said article, the limitation is three years from the date of the decree or order and where there has been an appeal, three years from the date of the appellate court's judgment. The learned Subordinate Judge took the view that there having been an appeal to the High Court, the starting point of the limitation was the date of the High Court's judgment from which the three years' period had to be counted. The learned Single Judge was of the view that the decree in favor of Jai Narain Pershad was passed on 18th January, 1949 and there was nothing to prevent the decree holder executing that part of the decree as that was not under appeal to the High Court and, thereforee, the period of limitation commenced from the date of the decree passed by the trial Judge, and the execution application having been filed after more than three years of the date of the decree of the trial court, the same was barred by time.

(6) In order to appreciate the point in controversy, it will be useful to reproduce the relevant portion of article 182 of the Limitation Act, 1908 : Description of application Period of limitation Time from which period begins to run For the execution of a decree or order of any Civil Court not provided for by article 183 or by Section 48 of the Code of Civil Procedure,1908 Three years, or where a certified copy of the decree or order has been registered, six years. 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 withdrawal of the appeal.

(7) It will be seen from column 3 above that sub-clauses (1) and (2) in col. 3 contemplate two dates from which the three year period has to be calculated, viz., (i) the date of the decree or order; and (ii) where there has been appeal, the date of the final decree or the order of the Appellate Court or the withdrawal of the appeal.

(8) The Subordinate Judge had passed the decree in the suit on 18th January, 1949. There was an appeal to the High Court against the decree of the Subordinate Judge. The appeal was decided on 8th December, 1959. It is not disputed that if the three year period is calculated from the date of the decree of the trial Judge, the execution application would be barred by time and in case the period is calculated from the date of judgment of the High Court, the execution application is within time.

(9) Shri Bhatia, the learned counsel for the appellant, contended that the expression in sub-clause (2) in col.3 'where there has been an appeal' should be given its plain meaning and the quoted clause should be interpreted to apply without any exception to decrees from which an appeal has been lodged by any of the parties to the original proceeding and that there is nothing in article 182 (2) to limit its application, only to decrees which are the subject matter of appeal. On the other hand, Shri Radhey Mohan Lal contended that if in a suit reliefs are granted to the parties independent of each other and an appeal is filed by one party against one or some of the reliefs granted, there being no appeal by or against the other parties as regards other reliefs, limitation under article 182 as against the reliefs not appealed against will begin to run from the date of the decree and not from the date of the appellate judgment-according to Shri Lal the true test being that the decree passed by the Appellate Court must be the decree which is sought to be executed. Shri Radhey Mohan Lal further contended that in the suit two distinct decrees were passed one in favor of the appellant against R.S. Chiranji Lal & Sons and the other in favor of R.S. Chiranji Lal and Sons against Shinglu and that the appeal by Shinglu did not in any way affectthe decree passed in favor of the appellant and, thereforee, the appeal by Shinglu against the decree passed against him did not postpone the running of the period of limitation prescribed by article 182 (2) in the case ofthe decree passed in favor of the appellant.

(10) Article 182 (2) ofthe Limitation Act has led to considerable conflict in decisions. The counsel for the appellant has placed reliance, in support of his contention, on the following authorities : [Nur-ul-Hasan vs. Muhammad Hasan I.L.R. 8 Alld 573, Gopal Chunder Manna and others vs. Gosain Das Kalay I.L.R. 25 Cal. 594 Kristnama Chariar vs. Mangammal and ors. I.L.R. 26 Mad. 91, Somar Singh and others vs . Mt. Premdei Kuer and others : AIR1925Pat40 Nagbedra Nath Dey and others vs . Suresh Chandra Dey and others, , Ghulam Hussain Shah vs. Radhka Rani Air 1934 Lah 318, Kanniammal vs . Balakrishna Tharvady and ors : AIR1935Mad557 , Pandurang Kesho Vairagade vs Kunwarlal Singh Indra Rajsingh. , Govindan vs Damodaran and others Air 1941 Nag 19 Air 1952 T.C. 269, Kunjammal vs . Krishna Chettiar, : AIR1954Mad170 , and Arumugam Chettiar vs Kalyanasunderam Pillai & anther A.I. 1961 Mad 465, The judgments which have taken the contrary view are : Mashiatun-Nissa vs. Rani I.L.R.13 All (12) Hafiy Muhammad Abdullah vs. Amrao Singh Air 1934 Lah 637, Sivaramachari vs . Bayya Anjeneya Chetty, : AIR1951Mad962 , Kirpal Shah Sant Singh vs . Harkishan Das Narsingh Das, , D.M. Jacinto and another vs. J.D.B. Fernandez. Air 1939 Bom 454, and Gulzarilal Bhargava vs. Murari Lal Bhargava, 1971 P.L.R. 238 Delhi Section. 17.

(11) We shall briefly deal with the cases that relate to the period before the Privy Council decision of 1932 and then deal with the cases after the decsion of the Privy Council case. In the case of Nur-ul-Hasan (supra) the facts were that Muhammad Hasan and Miyan Muhammad had filed a suit to enforce the right of pre-emption in respect of the sale of certain property and two persons named Amir Chand and Khur-shed Husain also filed a suit claiming a similar right in respect of the same sale. On 7th March, 1882, the suit of Mhuammad Hassan and Miyan Muhmmad was decreed against the vendors, the purchaser and the rival claimants to the right of pre-emption. The vendors and the purchaser did not appeal from this decree, but the rival claimants to the right of pre-emption filed an appeal. The court of first appeal affirmed the decree of the trial Judge on 12th May, 1882 and the second appeal to the High Court also met with the same fate. On 12th May, 1885, Muhammad Hasan and Miyan Muhammad, decree holders, applied for execution of the decree. The judgment-debtor Nur-ul-Hasan contested the application on the ground that it was barred by limitation. His contention before the court was that he had not appealed against the decree dated 7th March, 1882 and so far as he was concerned, the decree was final and the application made against him on 12th May, 1885 was beyond time. Mr. Justice Old fileld held that although only one set of defendants had appealed against the original decree, the appeal had imperilled the rights of the plaintiffs-respondents which they had obtained by a decree against all the defendants, that had the appeal of the second set 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. His Lordship further held:-

'Ithink the terms of art. 179, cl.(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.'

(12) Mahmood J., who concurred with the conclusion of Old field J., in separate judgment held:-

'INthe 2nd clause of art. 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 imperilled by the appeal.'

(13) In the case of Mashiat-un-Nissa. (2nd 13 All. 1), the facts were that Mst. Mashiat-un-Nissa had brought a suit against six persons and obtained a decree for possession of immovable property on 12th December, 1881. In this litigation some parties were absent in the first court and an ex-parte decree was passed against them. Out of the six defendants, only two defendants presented an appeal to the lower appellate court, not from the whole decree, but from a portion thereof.

(14) The court of first appeal allowed the appeal on 24th April, 1882 and from that decree an appeal was filed in the High Court. The High Court allowed the appeal on 17th April, 1883 and restored the decree of the Court of first instance. On 15th April, 1886, Mst. Mashiat-un-Nissa filed an application for execution of the decree. Mst. Rani, one of the judgment-debtors, preferred objections on the ground infer alias that the decree was barred by limitation. The court of the first instance disallowed the objections but the lower applellate court allowed the objections and held that the execution of the decree was barred by limitation. The decree holder went in appeal to the High Court. The appeal was heard by a Bench of five Judges. The Full Bench by majority (Brodhurst and Mahmood Jj dissenting) held that an application for execution of the original decree against those defendants who had not appealed from it and which was made five years after the date of decree was barred by limitation and clause 2 of article 179. Schedule 11 of the Limitation Act did not apply so as to make time run from the proceedings in the appeal preferred by the other defendants. The clause applied only to those cases in which the parties to the execution proceedings were parties to the appeal, or to that class of cases to which section 544 of the Civil Procedure Code applied. Straight J., following the majority view, held-

'ITseems to me to be a reasonable principle, and it is difficult to understand why one judgment-debtor whose liability is independent of and apart from that of another judgment-debtor under the same decree, under circumstances such as are disclosed in the present case, should have the period of limitation for execution of the decree as against him almost, if not quite, indefinitely postponed because the other judgment-debtor, in respect of matters alien to him and his liability, prefers an appeal.'

(15) Mahmood J. followed the view expressed by him in the case of Nur-ul-Hasan (supra) and held that art. 179, of the Limitation Act must be construed as intended to apply without any exceptions to decrees from which an appeal has been lodged by any of the parses to the litigation in the original proceedings.

(16) Brodhurst J., who agreed with Mahmood J., observed:

'...BUTfor my own part I think the terms of art. 179, cl. (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.'

(17) In the case of Gopal Chunder Manna (2nd 25 Cal. 594), the facts were that the plaintiff obtained a joint decree against defendants for possession of immovable property and damages on 21st May, 1886. Against that decree all the defendants, except defendant no. 1, appealed and on 2nd July, 1887 so much of the decree was reversed as made the appealing defendants liable for damages but was affirmed in all other respects. A second appeal by the plaintiff from the decree of the appellate court was dismissed by the High Court on 9th July, 1888.

(18) The plaintiff took out the execution of the decree on 7th July 1891 within three years from the date of the final decree dated 9th July, 1888. Defendant No. 1 contested the application on the ground that limitation as against him would run from 21st May, 1886, there being no appeal by or against him from the decree of that date. A full Bench of five Judges considered the matter and held-'that limitation against defendant No. 1 would run from date of the decree in appeal, thereforee the application for execution was not barred by limitation.

(19) While dealing with the case of Mst. Mashiat-un-Nissa (supra), Maclean C.J., observed:

'FORmyself I prefer the reasoning and the conclusion of the two learned Judges who were in the minority in that case, and to read the language of sub-section 2 of Article 179 of the second schedule to the Limitation Act according to the ordinary significance of the words used. That article says that, where there has been an appeal, the date of the final decree or order of the Appellate Court shall be taken to be the time from which the period is to begin to run. There is no such qualification in the Article as is suggested by the majority of the Judges in the Allahabad case, and which must be read into the article in order to support their view, nor is there anything to lead me to suppose that any such qualification or modification was inetnded by the Legislature. The language of the article is reasonably clear, and in my opinion the safer course is to construe it according to the ordinary meaning of the words used. Again, upon the question of convenience, the convenience seems to me to be all in favor of the view which I take.'

(20) The next case in line is that of Kristnama Chariar (2nd 26 Madras 91) where a Full Bench of the Madras High Court held:-

'UNDERarticle 179 of schedule Ii to the Limitation Act, when a portion of a decree has been appealed against and a portion has not, the period of limitation for an application to execute the portion not appealed against runs from the date of the decree on appeal.'

(21) Benson J. in his separate judgment in this case observed:

'ARTICLE179, clauses I and 2, enact that the period of limitation for execution of a decree like the present is 'three years from the date of the decree, or where there has been an appeal, the date of the final decree of the Appellate Court.'

(22) The article makes no distinction between those cases in which the whole decree is appealed against and those in which only a part of the decree is appealed against. If the Legislature thought such a distinction desirable it would not have been difficult to find apt language in which to give effect to the distinction but for the Courts to do what the Legislature has refrained from doing would be to alter the law and would, in my opinion, introduce an unnecessary element of uncertainty into the execution of decrees. The grammatical meaning of the words is simple enough and should be given effect to.

(23) In the case of Somar Singh Air 1925 Patna 40 their Lordships held:

'INan appeal from part of the decree by some of the parties the entire decree becomes the subject-matter of the appeal. Article 182, clause (2) would seem to apply where there has been an appeal from a part or whole of the decree, or only when some of the parties to the suit have brought the appeal.'

(24) In Abdul Alim's case : AIR1927Cal89 , it was held:-

'WHENa decree is appealed against even though the appellant appeals against only a portion of the decree, the whole decree of the first Court is superseded by or becomes merged in the decree of the appellate Court, and there is no part of the first Court's decree that remains to be executed. There is only one decree to be executed and that is the decree of the appellate Court. Hence time for applying for execution runs from the date of the appellate Court's decree.'

(25) In Nagendra Nath Dey's case , the facts were: Certain properties belonging to the parties to the litigation were the subject matter of a partition suit which led to a Receiver of the properties being appointed with power to raise a loan by mortgaging the same. A mortgage was executed in favor of some of the co-sharers by the said Receiver. The property was then partitioned among the co-sharers and subsequently another suit was brought to enforce the mortage. A decree was passed by the Subordinate Judge which led to an appeal to the High Court, which was compromised. The High Court's preliminary decree in the mortgage suit, based on the compromise, divided the co-sharers into two groups, one of decree-holders and one of judgment debtors. Some of the judgment debtors paid the amount due but the others did not. This led to an application to the Subordinate Judge for a final mortgage decree. One of the applicants, Madan Mohan, claimed that there had been an assignment in his favor by some of the mortgagees. This claim was disallowed and afinal mortagage decree was passed. This led to the filing of an appeal in the High Court by Madan Mohan which was restricted only to the question of the alleged assignment in his favor. This appeal was eventually dismissed by the High Court in August, 1922, as being incompetent. When an execution application was filed in October, 1923, it was contended that the execution was time barred having been filed more than three years after the date of the final decree which was 24th June, 1920. The Subordinate Judge held that it was not time barred but the High Court reversed this decision and this led to the appeal to the Privy Council. The question that was raised before the Privy Council by the judgment-debtors was that the decree against them had not been challenged in the appeal and, thereforee, there could be no extension of limitation by reason of the appeal. Their Lordships of the Privy Council, after noticing the conflict that prevailed in the Indian courts with regard to the interpretation of Article 182 of the Limitation Act, proceeded to hold-

'THEREis, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to 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 and 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. Nor in such a case as this is the judgment debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court.'

(26) The conflict which had prevailed in the various High Courts for over 40 years was settled by the Privy Council in the case Nagendra Nath Dey (Supra). In the subsequent cases while the ratio of the Privy Council decision in Nagendra Nath Dey was applied in some, it was distinguished in others.

(27) In Ghulam Hussain Shah's case (A.I.R. 1934 Lahore 318),Bhide J., relying upon Nagendra Nath Dey, held-

'FORpurposes of Art. 182(2), it is sufficient that there has been an appeal and there is no warrant for reading into the words of the article any qualification either as to the character of the appeal or as to the parties to it. Where there was an appeal from the decree in the suit in which respondent was awarded costs, but the question as to costs was not the subject matter of the appeal: Held: that the period of limitation did not begin to run from the original date of the decree.'

(28) In Kanniammal's case : AIR1935Mad557 . the Madras High Court held-

'INall cases, what Art. 182(2), Limitation Act refers to is a decree, viz., one decree, and it is not permissible for Courts in execution to look into the matter and say that as there are sevreral reliefs which are severable what is nominally one decree, consists of several decrees. In the case of a plaint claiming several reliefs where the Court passes a decree granting some of such reliefs and refusing the others, but where an appeal is preferred only against a portion of the decree regarding a particular relief, limitation for the execution of the other unappealed reliefs runs only from the date of the appellate decree.'

(29) In Pandurang Kesho VairagadeA.I.R. 1941 Nag 19 the facts were that the respondent in the case had filed a suit against Pandurang (appellant) and one Mohd. Hanif for rendition of the accounts of the village profits for the years 1928-29. and 1929-30. The suit resulted in a decree against the appellant Pandurang for Rs. 77-8-10 and against Mohd. Hanif for Rs. 259-4-0. The decree was passed on 31st March, 1932. Mohd. Hanif alone preferred an appeal from that decree without impleading Pandurang. The appellate decree was passed on 19th December, 1932 and the appeal was partly allowed. On 17th December, 1935 the decree-holder took out execution of the decree which was dismissed on 14th March, 1936. The decree-holder filed the second execution on 7th January, 1938 and attached the immovable property of both Pandurang and Mohd. Hanif. Pandurang contested the application on the ground that the application was barred by time. Neogr, J., after discussing the various authorities, held-

'THEperiod of limitation under Art. 182 commences to run only from the date of the appellate decree, whatever the nature of the decree appealed against whether it proceeds upon a ground common to the defendants or not, and whether one defendant appeals from such decree in so far as it affects his own interests or whether all the defendants appeal from only a part of a decree, and whether the parties against whom execution is, sought were parties to the appeal or not.'

(30) We shall next deal with the case of Sivaramachari : AIR1951Mad962 , on which the counsel for the respondent strongly relied. The facts of the cited case were that Sivaramachari, appellant, had filed a suit against one Bayya Subbiah Chetti. During the pendency of the suit, the respondent filed an application stating that the defendant was dead and praying that he may be brought on the record as his legal representative. On objection by the Plaintiff, the Court held that the death of the defendant was not proved and dismissed the application. Thereupon the Advocate on Record reported no direction and the suit was decreed ex-parte, on 27th March, 1941. The respondent filed a civil revision petition in the High Court against the order dismissing the application for being brought on record as the legal representative of the defendant. The pettition of the respondent was dismissed on 6th February, 1943. On 17th July, 1944 the appellant as decree-holder filed an execution petition impleading the respondent as a party as he had meanwhile obtained a probate in respect of the Will left by the defendant, Subbiah Chetty. On 2nd December, 1944, the execution petition was dismissed as not pressed. On 23 December, 1946, the appellant filed another execution petition which gave rise to the appeal. The executing Court and the District Judge dismissed the application as barred by limitation on the ground that the first execution petition filed on 17th July, 1944 was itself barred by limitation as having been filed more than three years after the date of the decree 27th March, 1941. Against the judgment of the District Judge, the decree-holder went in appeal to the High Court. Rajamannar, C.J., held-

'The word 'appeal' in Cl. (2) which is no doubt a general word must bear a meaning restricted by its context and it means 'an appeal from a decree or order of the nature mentioned in cls., 1, 3 and 4; that is to say anappeal from the original decree or order, an appeal from a decree following a review of judgment, an appeal from an amended decree.' The true test is that the decree of the appellate Court in the appeal must be the decree which is sought to be executed. This irresistibly follows from reading col. 3 along with col. I of the Article. In the case of an appeal against an order refusing to set aside an ex-parte decree, this test will not be satisfied, for it is not the order passed in that appeal that is sought to be executed. It is the original decree itself. Pending a suit, an application was made by a certain person, A on the allegation that the defendant in the suit had died and that he, the applicant, should be brought on the record as the legal representative of the deceased. The application was refused on the ground that the death of the defendant was not proved. The suit was then decreed ex parte. A then applied in revision against the dismissal of his application to bs brought on the record. The application in revision was also dismissed: Held, that assuming that the word 'appeal' in Cl.(2) included a revision petition, the order in the revision petition in this case cannot be the final decree or order of the appellate Court referred to in cl. 3 of Art. 182 and that limitation for execution began to run only from the ex parte decree.'

(31) We shall next deal with Kirpal Shah Sant Singh's case on which also strong reliance was placed by the counsel for the respondent. The facts of this case were that two cross suits were filed by Harkishan Das Chawla and Kirpal Singh in the court of Subordinate Judge, Gujranwala. On 10th October, 1945, the parties referred their disputes to arbitration. Under the arbitration award, Chawla became entitled to recover Rs. 7,000.00 from Kirpal Singh. Chawla made an application to have the award made rule of the court. Kirpal Singh filed objections to the award but they were dismissed on 19th November, 1946. A decree in accordance with the award was passed on 30th November, 1946. Kirpal Singh filed an appeal on 14th January, 1947 in the Lahore High Court against the order of 19th November, 1946 refusing to set aside the award. Kirpal Singh did not file any appeal against the decree passed on 30th November, 1946 for Rs. 7,000.00 The appeal of Kirpal Singh was dismissed on 6th February, 1948 for default of appearance by both parties. The decree-holder then made an application for the execution of the decree dated 30th November 1946 in the Delhi Court on 14th August, 1950. The judgment -debtor pleaded that the application was barred by time under Article 182(1) of the Indian Limitation Act. The plea of the decree-holder was that the limitation started from the date the Lahore High Court had dismissed the appeal of the judgment-debtor. The plea of the judgment-debtor was upheld by the executing court but on appeal, a single Judge of the High Court came to the conclusion that Article 182(2) applied to the case and the limitation started from the date of dismissal of appeal by the Lahore High Court. Against this judgment, the judgment-debtor went in Letters Patent Appeal. Their Lordships held-

'THEexpression 'where there has been an appeal' must be read with the words in column I of Article 182, viz. 'for the execution of a decree or order of any civil court.'

(32) An appeal has to be filed against the order or decree sought to be executed to give a fresh start of limitation under Cl. (2) in col. 3 of Art. 182. An appeal against a decree which imperils the decree sought to be executed would not furnish a fresh start of limitation.

(33) An appeal was filed against dismissal of objections to an award but no appeal was filed against the decree passed on award. The appeal was dismissed for default. The decree-holder took out execution of the decree.

'HELDthat limitation began from the date of the decree and not from the date when the appeal against the dismissal of objections against award was dismissed for default.'

(34) There are some other authorities also which have taken the same view.

(35) The above discussion of the various authorities would reveal that there were two views prevailing on the interpretation of Article 182 before the judgment of the Privy Council in Nagendra Nath Dey (supra).(5) One view was that where there has been an appeal, the date of the final decree or order of the appellate court shall be taken to be the date from which time is to run. The fact whether the appeal is only against part of the decree or only some of the parties to the suit had brought an appeal is not a relevant consideration. The other view was that where under one decree the liability of a judgment-debtor is independent of and apart from the other judgment-debtor then the appeal by one judgment-debtor alone will not save the running of the limitation against the other judgment-debtor. This conflict in the decisions was resolved by the Privy Council in the case of Nagendra Nath Dey. Their Lordships of the Privy Council in very clear terms have said that there is no warrant for reading into the words '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. From the interpretation placed by the Privy Council on the words 'where there has been appeal' it is clear that whether the appeal is against portion of the decree or by some of the parties only, once there is an appeal the limitation will begin to run from the date of the decree of the appellate court. Their Lordships further made it clear 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. The words 'those affected' refer to the persons affected by the decree passeed by the court below and not only to the qarties that may be concerned in the subject matter of appeal. In our view, there is hardly any room for placing any other interpretation.

(36) After the decision of the Privy Council, one line of decisions extended the scope of the rule laid down in Nagendta Nath Dey(5) to cases where there was no appeal directly against the decree or order but the decree was imperilled by collateral proceedings. For instance, a suit is decreed ex parte-no appeal is filed by the judgment-debtor against the decree-the judgment-debtor files an application for the setting aside of the ex-parte decree-the application is dismissed and an appeal is taken against that order. The view taken by some of the courts was that since by the filing of the appeal for the setting aside of the ex-parte decree, the decree was imperilled time will begin to run from the date of the decision of the appeal-see Nagappa Bandappa Kadudi v. Guru shamappa Shankrappa Umarji, A.I R. 1933 Bom 255, Firm Dedhraj Lachminarayan v. Bhagwan Das and others, Air 1937 Pat 337 Nanduri Sriramachandra Rao v. Chintamanibhatla Venkateswara Rao and others, Air 1939 Madras 157(21), and Narmadabai Narayanshet v. Hidayatalli Saheballi, Air 1949 Bom 115(22).

(37) In Bhawanipore Banking Corporation Ltd., : [1950]1SCR25 , the Supreme Court held-the expression 'where there has been an appeal' must be read with the words in col. I of Art. 182, viz., 'for the execution of a decree or order of any civil court...' and however broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution. This decision of the Supreme Court arrested the tendency to give a beneficial interpretation to the words 'where there has been an appeal' so as to extend them to an appeal from an interlocutory order in the suit, or an appeal in any collateral proceeding. The view taken by the Supreme Court was adopted and followed in Sivaramachari v. Bayya Anjaneya Chetty . : AIR1951Mad962 , Narayanan Thampi v. Lakshmi Narayana A.I.R 1953 Tra-Co 220(24), Kirpal Shah Sant Singh v. Shri Harkishan Das Narsingh Das , Ghanashyam Mohapatra v. Suryamani Swain : AIR1964Ori205 .

(38) In the above noted cases there was no appeal against the decree or order execution of which was taken out. The decree-holder in these cases wanted the rule laid down in Nagendra Nath Dey (supra)(5) to be extended to cases where the decree sought to be executed was imperilled by collateral proceedings-the argument being that once the decree is put injeopardy, whether by way of appeal or by the taking of another proceeding, the limitation will begin to run from the date of the decision of appeal or the other proceeding. This argument which was accepted in the first set of cases was repelled by the Supreme Court in the case of Bhawanipore Banking Corporation Ltd. (supra), and in the second set of cases. However, either of the said decisions are not of any assistance in the present case, in which the appeal preferred to the High Court was against the original decree and not against a decree or order in a collateral proceeding.

(39) We shall now refer to three other authorities on which the couns for respondents placed reliance :Hafiz Muhammad Abdullah v. Amrao Singh A.I.R. 1934 Lah 637, D. M. Jacinto v. J. D. B. Fernandez A.I.R. 1939 Bom 454 and Galzari Lal Bhargava v. Murari Lal Bhargava 1971 P.L.R. Delhi 238. In Hafiz Muhammad Abdullah's case, it was found that the parties by mutual consent had agreed to specify the respective liabilities of the various judgment-debtors and put it beyond doubt that the decree-holders can proceed against each individual judgment-debtor in respect of his share of the decretal amount and costs and no more. On the facts found it was held by Agha Haidar J. that 'there were in reality four separate decrees against the four judgment-debtors and the mere fact that the decree was written out on one sheet of paper did not in fact make


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