1. The decree sought to be executed is dated 16th February, 1914. The Petitioners (Appellants) petitioned to execute it against Defendants 4, 18 and 42 (Respondents 1, 2 and 3) in respect of mesne profits and for possession of a plot of land.
2. The decree was joint and several against all the defendants.
3. The defendants appealed to the High Court against the above decree and the appeal was dismissed on 29th March, 1916. On 18th January, 1917, the High Court reviewed the decree at the instance of Defendants 19, 21 and 22 and limited their liability to certain items. The Respondents were not made parties to the review application.
4. In the present execution petition the appellants give the 'date of decree' as 'Date of amended Decree 18th January, 1917'. They now appeal against the order in execution in so far as the learned Subordinate Judge has held that subsequent profits for the years 1910 to 1919 are not recoverable in execution as no final decree has been passed in respect thereof.
5. We think that this construction of the decree is clearly wrong and Mr. Somayya for the 2nd Respondent does not argue otherwise.
6. There is however a Memorandum of Objections which raises a point which if sound goes to the root of the whole matter. Mr. Somayya argues that limitation should run not from the date of the review order but from the date of the original decree. If he is right this execution petition is time-barred. The basis of his argument is that inasmuch as the Respondents were not parties to the review application their legal rights cannot be affected by an ex parte order, that is, that a fresh period of limitation cannot be created by, an order in their absence. Article 182(3), Limitation Act, is prima facie against this contention--the words 'where there has been a review' are not limited or qualified.
7. The cases cited do not in our view support this contention. Kotaghiri Venkata Subbamma Rao v. Vellanki Venkatarama Rao , it was urged, is an authority in its favour, but this case was decided on the ground that the High Court acted ultra vires and that such an order could not prejudice absent parties who could therefore rightly claim that the original decree was intact. Abdul Khadir v. Ahammad Shaiwa Ravuthar I.L.R. (1913) 38 Mad. 419 is a case of fraud by one judgment-debtor being invoked to extend time against an innocent co-defendant. This position was not acceptable to the Full Bench who preferred the view of Sundaram Aiyar, J., to that of Phillips, J., in Abdul Khadir v. Ahammad Shaiwa Ravuthar I.L.R.(1911) 35 Mad. 670 : 22 M.L.J. 35, the subject of the Full Bench decision. In that case Sundaram Aiyar, J., at p. 675 observes:
No doubt, where an appeal has been preferred against a decree or the decree has been amended or judgment reviewed, time would run for execution only from the date of the final or revised decree, though not all the judgment-debtors may be concerned in the appeal, review or amendment.
8. The learned Judge then proceeds to distinguish the special consideration applicable to fraud under Section 48 of the Code of Civil Procedure. The respondent is therefore asking us to apply to Article 182 a restricted meaning for which there is no authority. On the other hand the recent decision of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey is strongly opposed to the Respondents' case. Their Lordships dealing with Article 182(2) express the following view:
There is no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it--the words mean just what they say.
9. If Mr. Somayya's argument was accepted by us we should have to read into Article 182(3) an elaborate proviso protecting persons not parties to the review, that is, a qualification as to parties which is precisely what the above judgment prohibits.
10. We consider that the plain wording of Article 182(3) must be followed and as there has been a review, time will run from the date of the review.
11. The result of the above conclusions is that the Appeal Against Order No. 22 of 1930 must be allowed and the Memorandum of Objections disallowed with costs throughout.