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Mst. Norati and ors. Vs. Abhai Karan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtRajasthan High Court
Decided On
Case NumberCivil Ex. First Appeal No. 3 of 1953
Judge
Reported inAIR1957Raj101
ActsLimitation Act, 1908 - Schedule - Article 182(2); Code of Civil Procedure (CPC) , 1908 - Order 41, Rule 17(1)
AppellantMst. Norati and ors.
RespondentAbhai Karan and ors.
Appellant Advocate K.C. Sanghi, Adv.
Respondent Advocate P.C. Bhandari, Adv.
DispositionAppeal dismissed
Cases ReferredRam Kumar v. Chaube Rudra Dutt
Excerpt:
- - 104 :(air 1914 pc 65) (a). in that case an appeal preferred to his majesty in council was dismissed under rule 5 of the order in council of the 13th june, 1853 because of failure of the appellant or his agent to take an effectual step for the prosecution of the appeal......in ram kumar v. chaube rudra dutt, air 1951 all 493 (d) and it was observed that the position in appeals dismissed for want of prosecu-tion in india was, however, different. an appeal in such cases does not stand automatically dismissed for want of prosecution under the provisions of the civil procedure code. it has got to be dismissed by an order of the courtorder xli rule 17(1) lays down that where on the day fixed, or on any other day to whichthe hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing the court may make an order that the appeal 'is dismissed. the order that would be passed under the aforesaid rule would be ajudicial order. an order dismissing an appeal for want of prosecution in india is, therefore, a judicial order disposing.....
Judgment:

Bapna , J.

1. This is a first appeal by the judgment-debtor in execution proceedings.

2. The respondents obtained a decree forrecovery of Rs. 5078/- from the court of the Civil Judge, Sambhar on 20th December, 1944 and the appeal of the defendant was dismissed by the District Judge, Jaipur on 19th January, 1946 on merits. The defendant filed a second appeal on 18th April, 1946. It was dismissed for default of appellant on 8th September, 1948. The first application for execution of the decree was made on 16th September 1949 against Mst. Norati and others, legal representatives of the judgment-debtor. The second application was made on 21-2-55. An objection was raised on behalf of the judgment-debtor that the application was barred by time because the earlier application filed on 16th September, 1949 was made after the lapse of three years of the decree of the District Judge which had been passed on the 19th January, 1946. It was contended that the dismissal of the second appeal by the High Court for default of appellant did not give a fresh start of limitation as at could not be considered to be a decree or a final order.

3. Reliance was placed on the case of Batuk Nath v. Munni Dei, 41 Ind App. 104 : (AIR 1914 PC 65) (A). In that case an appeal preferred to His Majesty in Council was dismissed under Rule 5 of the Order in Council of the 13th June, 1853 because of failure of the appellant or his agent to take an effectual step for the prosecution of the appeal. It was held that it was not a judicial order and the time could not be reckoned from that order under Article 182(2X of the Limitation Act.

4. Another case relied upon was Chandri Atadul Majid v. Jawahir Lal, AIR 1914 P. C. 66 (B). In that case again the appeal was dismissed by the Privy Council for want of prosecution, and it was held that this was not a judicial order and did not give a fresh start of limitation under Article 182 (2) of the Limitation Act.

5. These two cases were, however, considered in a latter case Abdulla Asghar Ali v. Ganesh Das Vig, AIR 1933 PC 68 (C) and it was emphasised that the order in each of the two cases was not a judicial order, but an order that the appeal had abated was considered to be judicial order and an application within three years of that order was considered to be within limitation under Article 182 (2) of the Limitation Act.

All the three cases were considered by the Allahabad High Court in Ram Kumar v. Chaube Rudra Dutt, AIR 1951 All 493 (D) and it was observed that the position in appeals dismissed for want of prosecu-tion in India was, however, different. An appeal in such cases does not stand automatically dismissed for want of prosecution under the provisions of the Civil Procedure Code. It has got to be dismissed by an order of the CourtOrder XLI Rule 17(1) lays down that where on the day fixed, or on any other day to whichthe hearing may be adjourned, the appellant does not appear when the appeal is called on for hearing the Court may make an order that the appeal 'is dismissed. The order that would be passed under the aforesaid rule would be ajudicial order. An order dismissing an appeal for want of prosecution in India is, therefore, a judicial order disposing of the appeal and it is a final order within the meaning of Clause (2).of Article 182 of the Limitation Act.

6. In the present case, therefore, the order of dismissal for default passed by the second appellate court on 8th September 1948 was the final order within the meaning of Clause (2) of Article 182 of the Limitation Act and the first application having been filed within three years of the final order, it was obviously within time.

7. There is no force in this appeal and itis accordingly dismissed with costs.


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