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Shah Sankal Chand Vs. Punamchand - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtRajasthan High Court
Decided On
Case NumberCivil Misc. First Appeal No. 2 of 1952
Judge
Reported inAIR1954Raj273
ActsLimitation Act, 1908 - Schedule - Article 182
AppellantShah Sankal Chand
RespondentPunamchand
Appellant Advocate Magraj, Adv.
Respondent Advocate Sohanraj, Adv.
DispositionAppeal dismissed
Cases ReferredChandmal v. Baburmal
Excerpt:
- .....shah sankal chand had brought a suit against the respondent shah punamchana and obtained an ex parte decree on 20-2-1948. this decree was put in execution on 31-5-1951. the judgment-debtor respondent was given notice under order 21, rule 22, and on appearance took the plea that the application for execution was barred by limitation. this plea was accepted by the executing court and the application for execution was dismissed. hence this appeal.3. the case of the decree-holder appellant was that limitation was saved under article 182 in view of the provisions in clause 2 of column 3 of that article. it appears that, after the ex parte decree had been passed, there was an application by the defendant for setting aside the ex parte decree. this application was dismissed. thereupon,.....
Judgment:

Wanchoo, C. J.

1. This is an appeal by shah sankal Chand against the judgment of the Civil Judge of Sirohi in an execution matter.

2. Shah Sankal Chand had brought a suit against the respondent Shah Punamchana and obtained an ex parte decree on 20-2-1948. This decree was put in execution on 31-5-1951. The judgment-debtor respondent was given notice under Order 21, Rule 22, and on appearance took the plea that the application for execution was barred by limitation. This plea was accepted by the executing Court and the application for execution was dismissed. Hence this appeal.

3. The case of the decree-holder appellant was that limitation was saved under Article 182 in view of the provisions in Clause 2 of column 3 of that article. It appears that, after the ex parte decree had been passed, there was an application by the defendant for setting aside the ex parte decree. This application was dismissed. Thereupon, there was an appeal from the order dismissing the application for setting aside the ex parte decree, and this appeal was dismissed on 22-11-1950. The case of the appellant is that the period of limitation should start from 22-11-1950, when the appeal from the order refusing to set aside the ex parte decree was dismissed, and not from 20-2-1948. This depends upon whether Clause 2 in the third column of Article 182 includes also an appeal from collateral proceedings, or whether it only includes an appeal from the decree or order sought to be executed. Clause 2 is in these words '(where there has been an appeal) the date ofthe final decree or order of the Appellate Court,or the withdrawal of the appeal.' It is contended on behalf of the appellant that the word 'appeal' here includes any kind of appeal relating to the proceedings in which the decree arose. On the other hand, the respondent contends that it means an appeal from the decree or final order which is put in execution.

4. This question has been debated in various High Courts in India for more than half a century. The view, which was almost universally prevalent before 1932, was that the word 'appeal' in this clause meant an appeal from, the decree or final order which is under execution. Then came the decision qi their Lordships of the Privy Council in -- 'Nagendra Nath Dey v. Suresn Chandra', AIR 1932 PC 165 (A), and some High. Courts thereafter changed their view particularly the Patna, Madras and Bombay High Courts, and held that the word 'appeal' in this case meant any kind of appeal, and not only an appeal from the decree or order in execution. When this change in view had taken place in some of the High Courts, the matter came to be considered in the Allahabad High Court in -- 'Bahadur Singh v. Sheo Shankar', AIR 1950 All 327 (B). After a review of the authorities till then available, it was decided that the word 'appeal' could only mean appeal from the decree or order under execution, and that the judgment of the Privy Council in -- 'Nagendra Nath Dey's case (A)', had made no difference to the law as it was interpreted before that judgment.

5. Learned counsel for the appellant referred to certain cases of various High Courts before 1950, in which the other view was taken. But, In view of the latest trend of opinion, which will appear from a few cases which we will just cite, it is not necessary to consider in detail the cases of the period between 1932 and 1950 of some of the High Courts, particularly Bombay, Patna and Madras.

6. The first case to which reference may be made is --'Bhawanipore Banking Corporation Ltd. v. Gouri Shankar', AIR 1950 SC 6 (C). In that case, the Supreme Court, when dealing with the second clause in the third column of Article 182, pointed out that however broadly the word 'appeal' in this clause may be construed, it could not be held to cover an appeal in a collateral proceeding or which had no direct or immediate connection with the decree under execution. The order in this case, which was taken in appeal, was under the Money-lenders Act for the restoration of the proceedings. This provision was almost similar to Order 9, Rule 9, or Order 9, Rule 13, Civil P. O, This view of the Supreme Court, in our opinion, practically settles the matter.

7. The next case, to which we will refer, is --'Haris Chandra v. Dines. Chandra'; AIR 1946: Cal375 (D). In that case, the authorities were reviewed including 'Nagendra Nath Dey's case (A)', and it was held that the word 'appeal' meant an appeal from the order or decree under execution and not an appeal from any order connected with the decree.

8. In -- 'Rameshwar Prasad v. Parmeshwar Prasad', AIR 1951 Pat 1 (PB) (E), the Patna High Court constituted a Full Bench in which the previous cases were reviewed, and the view taken between 1932 and 1950 was overruled, and the original view, namely that the word 'appeal' meant an appeal from the decree or order sought to be executed, was restored.

9. In -- 'Sivaramachari v. Anjaneya Chetty', AIR 1951 Mad 962 (FB) (F), the Madras High Court also constituted a Full Bench, reviewed the Jaw, and overruled the decisions which had been given between 1932 and 1950, and accepted the view taken in 'Bahadur Singh's case (B)' by the Allahabad High Court.

10. In -- 'Narayanan Thampi v. Lekshmi Nara-yana Iyer', AIR 1953 Trav-C 220 (FB) (G), a Full Bench was constituted in the Travancore-Cochin High Court, and it was held, relying on the judgment of the Supreme Court referred to above, that the word 'appeal' in the second clause in column third of Article 182 meant an appeal against the decree or order under execution and not any other kind of appeal.

11. In our own Court, there is a Single Judge decision in -- 'Chandmal v. Baburmal', AIR, 1951 Raj 150 (1) (H) where the view taken in --'Bahadur Singh's case (B)' was followed.

12. We do not think it necessary to discuss the matter in further detail after this review of the authorities. The consensus of opinion now is that the appeal in the second clause in column third of Article 182 means an appeal from the order or decree in execution and not an appeal from any other proceeding connected therewith. In this view of the matter, as the appeal in the present case was from the order refusing to set aside an ex parte decree, and not from the ex parte decree itself, the limitation would start from 20-2-1948 and not from 22-11-1950. The Civil Judge is, therefore, right in holding that the execution application was barred by time.

13. There is no force in this, appeal which ishereby dismissed with costs to the judgment-debtorrespondent.


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