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J. Ephraim Fernandez Vs. Madi Pillay Sivakamy Pillai and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 303 of 1962
Judge
Reported inAIR1963Ker293
ActsLimitation Act, 1908 - Article 182
AppellantJ. Ephraim Fernandez
RespondentMadi Pillay Sivakamy Pillai and anr.
Appellant Advocate G. Viswanatha Iyer and; S. John, Advs.
Respondent Advocate P. Subramonian Potti, S.A. Nagendran and P. Kesavan Nair
DispositionAppeal allowed
Cases ReferredSomar Singh v. Devanandan Prasad
Excerpt:
.....- what was actually being executed was decree made by first court - held, time begins to run from date of decree passed on remand. - - that application was dismissed and an appeal he filed from the dismissal was dismissed on 20th february 1959. it is, however, not necessary to consider whether this could furnish a fresh starting point for limitation since the respondent decree-holders have a much stronger case based on the appeal against the order of remand and have not contended that, if they fail in that case, they can stand upon the appeal against the dismissal of the application under order ix, rule 13. 4. it might be as well to set out as much of article 182 as is relevant for the present purpose: according to this school then, an appeal from the dismissal of an application to..........of the appeal. turning to clause (3), when an application for review has been allowed, the decree originally passed is vacated and there is a re-hearing of the case as contemplated by order xlvii, rule 8 of the code. a fresh judgment and a fresh decree have to follow on rehearing even if they but affirm the original judgment and decree, and, as i have already observed, it is this fresh decree, not the original decree, that is executed.this position was, perhaps, not generally appreciated so much so that the legislature thought it necessary to expressly provide for the case by clause (3) pointing out, as it were, that the date of the decree under execution is the date of the decision passed on the review. (likewise clause (2) might also have been designed to point out that, as a.....
Judgment:

P.T. Raman Nayar, J.

1. The question for decision sounds simple. It is this: 'When does time begin to run under Article 182 of the Limitation Act for the execution of a decree made on remand where there has been an appeal against the order of remand and that appeal is decided (by dismissal) after the passing of the decree on remand? From the date of the decree or from the date of the dismissal of the appeal'.

No case directly in point has been brought to my notice. Nevertheless the answer seems to me simple enough, namely, that time begins to run from the date of the decree passed on remand, and, left to my own resources, uninformed by the conflicting decisions of the several High Courts regarding the scope of the word, 'appeal' in Clause (2) of Article 182, that is an answer I should have readily found.

2. The facts are these:

A suit for redemption brought by the predecessor of the present respondents was dismissed by the trial Court on the 20th September 1953. The plaintiff appealed, and, by an order dated the 13th May 1957, the appellate Court remanded the suit. On remand, the trial Court decreed the suit ex parte on the 23rd August 1957. Three days later, on the 26th August 1957, the defendant (the predecessor of the present judgment-debtors) appealed to this Court from the order of remand, and this appeal was dismissed on the 23rd August 1960. On the 7th October 1960, the present respondents brought their application for execution of the decree passed on remand. If the starting point for limitation is the date of the decree, i.e., the 23rd August 1957, the application is out of time, the decree not having been registered. But, it the starting point is the date of the dismissal of the appeal, i.e., the 23rd August 1960, it is in time.

The first Court held that the relevant date was the date of the decree and dismissed the execution application. On appeal, the lower appellate Court took the contrary view, namely, that the relevant date was the date of the dismissal of the appeal and that the execution application was therefore in time. Accordingly it directed that execution should proceed. Against that, one of the judgment-debtors has come up with this second appeal.

3. I might mention that the original defendant had filed an application under Order IX, Rule 13 of the Code for setting aside the ex parte decree against him. That application was dismissed and an appeal he filed from the dismissal was dismissed on 20th February 1959. It is, however, not necessary to consider whether this could furnish a fresh starting point for limitation since the respondent decree-holders have a much stronger case based on the appeal against the order of remand and have not contended that, if they fail in that case, they can stand upon the appeal against the dismissal of the application under Order IX, Rule 13.

4. It might be as well to set out as much of Article 182 as is relevant for the present purpose:

182.

For theexecution of a decree or order of any Civil Court not provided for by article 183 or bysection 48 of the Code of Civil Procedure. 1908 (V of 1908)

Threeyears; or where a certified copy of the decree or order hasbeen registered six years.

1. Thedata of the decree or

2. (Wherethere has been an appeal) the date of the final decree or order ofthe Appellate Court or the withdrawal of the appeal.

3. (Wherethere has been a review of judgment) the date of the decision passed on thereview, or

4. (Wherethe decree hased) the date of amendment, ox * * * *

I have already referred to the conflict of judicial opinion regarding the precise scope of theword, 'appeal'' appearing in the second clause of the third column. Broadly speaking, there are two schools of thought. The first, taking what has been called the' more liberal view, places a wide meaning on the word, 'appeal' and adopts what in Sivaramachari v. Anjaneya. AIR 1951 Mad 962 (FB) Rajamannar, C. J. named, the imperilling theory. This theory as propounded by Kulvani 'Sahay, J. in Somarsingh v. Deonandan, AIR 1927 Pat 215, would have it that 'the intention of the legislature in making this provision (Clause (2) of Article 182) was that if an appeal in any way imperils the decree sought to be executed, then the date of the final disposal of the appeal should be the date from which the period of limitation ought to be computed', Venkatramana Rao, J. went a little further in Koyakutti v. Veerankutti, AIR 1937 Mad 421 and thought it sufficient if the appeal was likely to affect the decree sought to be executed. According to this school then, an appeal from the dismissal of an application to set aside an ex parte decree would suffice to give a fresh starting point for limitation and, by a logical extension, so should an appeal from the dismissal of a suit to set aside a decree on the ground of fraud or other vitiating circumstance -- although why the appeal alone should have this effect and why the original proceeding which equally imperils the decree should not -- as it clearly cannot, having regard to the express language of Clause (2). that clause coming into play only 'where there has been an appeal' -- is more than I am able to understand and more than what any of the decisions of this school has chosen to explain. With great respect, I think the attempt made by Courtney-Terrell, C. J., in Firm Dedhraj Lachmi-aiarayan v. Bhagwan Das, AIR 1937 Pat 337 to bring a proceeding for setting aside an ex parte decree within Clause (3) of the article is in vain--see paragraph 4 of the judgment in Bhawanipore Banking Corporation v. Gouri Shankar, AIR 1950 SC 6.

5. AIR 1927 Pat 215, Nagappa v. Gurushant-appa, AIR 1933 Bom 255., AIR 1937 Patna 337, AIR 1937 Mad 421, Sriramachandra Rao v. Venkateswara Rao, AIR 1939 Mad 157 (followed in Veeran Kutti v. Koya Kutti, AIR 1939 Mad 735, affirming, AIR 1937 Mad 421) Narmadabai v. Hidayatalh, AIR 1949 Bom 115, Basudevanand v. Raghubir Saran, AIR 1955 Mad 735, (which fails to notice the contrary view taken by a Full Bench of the same Court in Rameswar Prasad v. Parmeshwar Prasad, AIR 1951 Pat 1 (FB), Ramesh Chandra v. Ghanshiam Dass, (S) AIR 1955 All 552, and Balkishan v. Dhanraj (S) AIR 1956 Nag 200, may be taken as fairly representative of the more recent decisions of this first school of thought. Narsingh Sewak Singh v. Madho Das, ILR 4 All 274 and Lutful Huq v. Sumbhudin Pattuck, ILR 8 Cal 248, are two of the older decisions on which many of these decisions rely -- in the interval the other school held the field--but it is to be noticed that in the Allahabad case, the decree tinder execution was in fact a decree made in appeal, setting aside a decree passed on- review and restoring the original decree. And in the Calcutta case their Lordships were obviously oppressed by the injustice of holding a decree to be barred when its execution had all along been suspended by an injunction, Section 15 of the Limitation Act of 1877 being confined to suits and not extending to execution applications.

6. In many of these cases--in AIR 1927 Pal 215 itself--the appeal considered was as appeal against a preliminary decree, the order in the appeal affirming the preliminary decree, being subsequent to the final decree under execution. An appeal against a preliminary decree may conceivably stand on a different footing; but, the imperilling theory on which these decisions rest has a much wider application. Indeed, an appreciation of the full implications of that theory has led some of the decisions--see AIR 1927 Pat 215, AIR 1937 Mad 421 and AIR 1939 Mad 157--to add the qualification stated in ILR 4 All 274 that the appeal must be an appeal in the suit, although as to what exactly comes within that expression they do not seem to be agreed. With regard to this qualification it is enough to say that it is not derived from the wording of the statute so that the reasonableness or otherwise of the result is scarcely an aid to the construction of the statute.

7. This school of thought can hardly be regarded as correct in view of the decision in AIR 1950 SC 6. It is not necessary to go into the facts of that case. It is sufficient to say that the appeal there considered was analogous to an appeal from the dismissal of an application for setting aside an ex parte decree, the appeal being an appeal against the dismissal of an application to restoro proceedings for reopening a preliminary decree, the decree under execution being the final decree passed in pursuance of this preliminary decree. Their Lordships observed as follows in paragraph 5 of their judgment:

'It was also suggested by the learned counsel for the appellant that the case might be held to be covered by Clause (2) of Article 182 on the ground that, even though no appeal was preferred from the final mortgage decree, the words 'where there has been an appeal' are comprehensive enough to include in this case the appeal from the order dismissing the application under Order IX, Rule 9, Civil Procedure Code, made in connection with the proceedings under Section 36, Money-lenders Act. This argument also is a highly far fetched one, because the expression 'where there has been an appeal' must be read with the words in Col. 1 of Article 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 gives the quietus to the imperilling theory, for, on that theory, Clause (2) of Article 182 should have covered the case.

8. The second school adopts what has been called the strict view, a view which, in my opinion, flows from the language of the statute. That view as it is commonly, but, for reasons that I shall presently state, not very accurately, stated is that the word, 'appeal' in Clause (2) of Article 182 means an appeal from the decree or order sought to be executed. Sheo Prasad v. Anrudh Singh, ILR 2 All 273, Jivaji v. Ramachandra, ILR 16 Bom 123, Fakir Chand v. Daiba Charan, AIR 1927 Cal 904, Profulia Kumar v. Mt. Sorojbala, AIR 1931 Cal 332. Haris Chandra v. Dines Chandra, AIR 1946 Cal 375, Mahadeo v. Fatumiya AIR 1948 B6m 337, Bahadur Singh v. Sheo Shankar, AIR 1950 All 327, AIR 1951 Pat 1 (FB), AIR 1951 Mad 962 (FB) and Kirpal Shah v. Harkishan pas, AIR 1957 Punj 273 are some of the more important decisions of this school brought to my notice. The true meaning of the word, 'appeal' appearing in the clause has been then stated, and, if I may say so with great respect, very correctly stated, by Rajamannar, C. I. in AIR 1951 Mad 962 (FB) at page 967:

'In my opinion, that word which is no doubt a general word must bear a meaning restricted by 'its context, and the meaning that I would give to it is, an appeal from a decree or order of the nature mentioned in Clauses 1, 3 and 4, that is to say, an appeal from the original decree or order, an appeal from a decree following a review of judgment, and 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.'

9. The reasons for this view, on principle as on authority, have been fully stated in the cases to which I have referred, and, in particular, by Rajamannar, C. J. and Viswanatha Sastri, J. in AIR 1951 Mad 962 (FB) by Shearer, J. in AIR 1951 Patna 1 (FB) and by Bavdekar, J. in AIR 1948 Bom 337.

I think it unnecessary to repeat those reasons or to consider once again the large number of conflicting decisions which have been considered in those cases. But there are one or two things which I would like to put in my own way. As pointed out by the Supreme Court in AIR 1950 SC 6 the expression 'where there has been act appeal' in Clause (2) in the third column, of Article 182 must be read with the words in the first column, viz., 'for the execution of a decree or order of any Civil Court.........' so that the appeal must have a direct and immediate connection with the decree under execution. Further, it seems to me that Clauses 1, 2, 3 and 4 of the third column have to be read together. In my opinion they deal with different aspects of the same matter, namely, the date of the decree under execution. Clause (1) is a general provision, and, broadly speaking, Clauses 2, 3 and 4, though worded in the alternative, do no more than deal separately with particular instances, by way of abundant caution, and, in the case of Clause 2, also so as to include cases which, strictly speaking, might not fall within Clause (1).

In the case of Clause (1), there can be no doubt whatsoever that the decree or order referred to therein is the decree or order mentioned in the first column of the article, namely, the decree or order under execution. Now, generally speaking, when there has been an appeal, or a review, or an amendment, the original decree ceases to exist and merges in the appellate decree, the reviewed decree, if, I might call it 80, or the amended decree as the case may be. There is, in all these cases, a fresh decree, and it is always this fresh decree, and not the decree that has ceased to exist, that is executed. The cases coming within Clauses 2, 3 and 4 would therefore ordinarily come within Clause (1). The relevant date in' those cases also would be the date of the decree sought to be executed, in other words, the date of the appellate decree, the reviewed decree, or the amended decree. It is this that Clauses 2, 3 and 4 make plain, and I can think of one or two reasons why it was considered necessary to make the special provisions in Clauses 2, 3 and 4 in addition to the general provision in Clause (1). It is not always that, when there is an appeal, the original decree or order ceases to exist and merges in the decree or order made in appeal. An appeal may be withdrawn; it might be dismissed for default; or again it might abate. In such cases, there would be no appellate decree in which the original decree could merge, and the decree to be executed would be the original decree. If Clause (2) had not been enacted, the position would have been that, in such cases, time would begin to run from the date of the original decree, notwithstanding the institution of an appeal from that decree. The Legislature thought that, where an appeal has been filed, a decree-holder should be allowed to wait (if he is so minded) till the disposal of the appeal before setting about executing his decree and that is why Clause (2) had to be expressly enacted to give the starting point of time as the date of the final decree or order of the appellate Court or the withdrawal of the appeal. Turning to Clause (3), when an application for review has been allowed, the decree originally passed is vacated and there is a re-hearing of the case as contemplated by Order XLVII, Rule 8 of the Code. A fresh judgment and a fresh decree have to follow on rehearing even if they but affirm the original judgment and decree, and, as I have already observed, it is this fresh decree, not the original decree, that is executed.

This position was, perhaps, not generally appreciated so much so that the legislature thought it necessary to expressly provide for the case by Clause (3) pointing out, as it were, that the date of the decree under execution is the date of the decision passed on the review. (Likewise Clause (2) might also have been designed to point out that, as a rule, where there has been an appeal, the decree under execution is the appellate decree). So far as Clause (4) is concerned, when a decree is amended, the original decree merges in the amended decree, and it is the amended decree, not the original decree, that is executed. But the amended decree would bear the date of the original decree, not the date of the amendment, so much so that Clause (4) was necessary to make the date of amendment the starting point for limitation. What this clause does is to make it clear that, where a decree has been amended, notwithstanding that it might still bear the original date, in truth, the date of the decree under execution, namely, the amended decree, is the date of the amendment. It seems to me that despite the form in which they appear, Clauses (2), (3) and (4) are really in the nature of explanations to Clause (1), specifying what is, in fact, the date of the executable decree or order in the particular cases for which they provide.

10. If, as I have said, Clauses (2), (3) and (4) are, in substance, only particular instances of Clause (1), it must necessarily follow that the word 'appeal' in Clause (2) can only mean as stated by Rajamannar, C. J. in the decision to which I have already referred,--

'an appeal from a decree or order of the nature mentioned in Clauses (1), (3) and (4), that is to say, an appeal from the original decree or order, an appeal from a decree following a review of judgment and an appeal from an amended decree.'

In other words the appeal referred to is the appeal in which the decree or order sought to be executed is passed and, if I may say so with respect, the error in the statement commonly made namely, that the appeal referred to is an appeal from the decree or order sought to be executed lies in that, generally speaking, when once there is an appeal and it has been decided, it is the appellate decree or order and not the decree or order appealed from (which in fact, has ceased to exist) that is executed.

11. I must refer to the following observations in Nagendra Nath v. Suresh, AIR 1932 PC 165 at p. 167 some of which led to an efflorescence of the imperilling school which had been languishing under the onslaught of decisions like ILR 16 Bom 123, Baikanta Nath v. Aughore Nath, ILR 21 Cal 387, Rai Brijraj v. Nauratan Lal, AIR 1917 Pat 157, AIR 1927 Cal 904 and AIR 1931 Cal 332 :

'Their Lordships think that nothing would be gained by discussing these varying authorities in detail They think that the question must be decided upon the plain words of the article : 'Where there has been an appeal', time is to run from the date of the decree of the appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal of 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. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so deal to debtors, and if he is virtuously inclined, there is nothing to prevent his paying what he owes into Court. But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of 24th June, 1920, time only ran against the appellants from 24th August 1922, the date of the appellate Court's decree.'

12. Their Lordships were there considering execution in a case where an appeal from the decree passed in the first instance had been dismissed, so that the case fell within what I have called the strict view of the scope of the word, 'appeal' appearing in Clause (2) of the article. Their Lordships made the observation in repelling the contention that to attract Clause (2) the appeal must not be a defective appeal, that it must be one to which the persons affected are parties, and that it must also be one in which the entire decree is imperilled. In doing so, they stated as an intelligible rule what they considered to be the theoretical justification for the provision in question. But, both before and after stating the theoretical justification, they were careful enough to emphasise that the plain meaning of the article must prevail, that equitable considerations are out of place, and that the strict grammatical meaning of the words is the only safe guide, whether or not there be a theoretical justification. After this clear warning, it seems to me rather surprising and I say so with the greatest respect that the provision in question should have been construed apart from its strict grammatical meaning as appearing from its context and held to apply to every case where the theoretical justification for the provision (the intelligible rule of their Lordships of the Privy Council) obtains, notwithstanding that the express words of the provision are not attracted. The fallacy, if I may say so, lies in the assumption that a statute applies to all cases where the reason behind the statute obtains, whether or not the actual words of the statute are attracted.

13. The only thing left to consider is whether the decree sought to be executed in this case is the decree or order passed in the appeal relied upon as giving a fresh starting point for limitation. I think not. It is true that in the case of an appeal from a preliminary decree, or an appeal from an order of remand, the effect of the appeal being allowed would be not merely to set aside the decree made by the first Court in pursuance of the preliminary decree or the order of remand. It would be as if that decree never existed. Even so, I am unable to see how, when such an appeal is dismissed, it can be said that it is the appellate order or decree that is being executed, when, what is actually being executed is the decree eventually made by the first Court. Or again, how it can be said that an appeal from a preliminary decree involves an appeal against the final decree which follows upon the preliminary decree, in the majority of cases a decree not even in existence when the appeal is disposed of. With great respect, I am of the view that the reasoning in paragraph 12 of the judgment of Rajamannar, C. J, in AIR 1951 Mad 962 at 967 (FB) following the reasoning of Dawson-Miller, C. J. in Somar Singh v. Devanandan Prasad, AIR 1928 Pat 581 is farfetched, and, in effect, salvages the imperilling theory for the particular case of an appeal from a preliminary decree. The observations in this paragraph were obiter, and it is to be remarked that it was not without hesitation that Viswanatha Sastri, J. concurred in them. With great respect I prefer the View expressed in AIR 1948 Bom 337 and in AIR 1957 Punj 273. And, in any case, I do not think that what has been said with regard to an appeal from a preliminary decree holds in the case of an appeal from an order of remand for, by no stretch of imagination can it be said that an appeal from an order of remand is an appeal also from the decree passed in pursuance of that order so as to merge' the decree in the appellate order and make the execution of the decree an execution of that order.

14. In the result I allow this appeal and dismiss the execution application brought by the respondents with costs throughout.

15. Leave granted.


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