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Sivaramachari Vs. Bayya Anjaneya Chetty - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtChennai High Court
Decided On
Case NumberA.A.A.O. No. 210 of 1948
Judge
Reported inAIR1951Mad962; (1951)IIMLJ245
ActsLimitation Act, 1908 - Article 182 and 182(2)
AppellantSivaramachari
RespondentBayya Anjaneya Chetty
Appellant AdvocateT.R. Srinivasan and ;S. Gopalaratnam, Advs.
Respondent AdvocateB.C. Seshachala Ayyar, Adv.
DispositionAppeal dismissed
Cases ReferredBhawanipore Banking Corporation Ltd. v. Gowri Shankar
Excerpt:
limitation - time barred suit - article 182 and 182 (2) of limitation act, 1908 - appeal against order passed by court below that execution petition was barred by limitation - petition filed more than three years after date of decree - appeal from preliminary decree may perhaps stand on somewhat different footing from appeal against interlocutory orders in same suit - construction of article 182 (2) simple - no requirement of elaboration by reference to precedents - order passed by court below confirmed - appeal liable to be dismissed. - - it is a well accepted principle of procedural law that once there has been an appeal the original deoree is set at large and even when the original decree is confirmed in appeal, the final decree is the decree of the appellate court. nor is there.....rajamannar, c.j.1. the question which falls for decision on this reference concerns the interpretation of article 132, col. 3 and clause (2), limitation act. the facts material for a discussion of this question are as follows: the appellant before us filed a suit (o. s. no. 479 of 1989) in the court of the district munsif of chittoor against one bayya subbiah chetti. during the pendency of the suit, the respondent filed i. a. no. 265 of 1941 stating that the defendant was dead and praying that he may be brought on 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 instructions and the suit was decreed ex parte on 27-3-1941. the.....
Judgment:

Rajamannar, C.J.

1. The question which falls for decision on this reference concerns the interpretation of Article 132, col. 3 and Clause (2), Limitation Act. The facts material for a discussion of this question are as follows: The appellant before us filed a suit (O. S. No. 479 of 1989) in the Court of the District Munsif of Chittoor against one Bayya Subbiah Chetti. During the pendency of the suit, the respondent filed I. A. No. 265 of 1941 stating that the defendant was dead and praying that he may be brought on 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 instructions and the suit was decreed ex parte on 27-3-1941. The respondent filed a civil revision petition to this Court (C. R. P. No. 1834 of 1941) against the order dismissing his application I. A. No. 265 of 1941 and that petition was dismissed on 6-3-1943. The appellant as decree-holder filed an execution petition on 17-7-1944 impleading the respondent as party as he had meanwhile obtained a probate in respect of the will left by the defendant Subbayya Chetti. This execution petition was dismissed as not pressed on 2-12-1944. On 23-12-1946 the appellant filed another execution petition out of which this appeal has arisen. Both the District Munsif of Chittoor and theDistrict Judge dismissed the application as barred by limitation on the ground that the first execution petition filed on 17 7-1944 was itself barred by limitation as having been filed more than three years after the date of the decree, namely, 27-3-1941. The decree-holder appeals.

2. The appeal originally came before Horwill J. who found a conflict of views in the decided cases as to the interpretation of the relevant provision of the Limitation Act and as the question was an important one which might frequently arise and which required an authoritative ruling, he considered it desirable that the appeal should be disposed of by a Bench. It was then posted before Satyanarayana Rao and Chandra Reddi JJ. who for the very reasons given by Horwill J. considered that the case should be heard by a Full Bench.

3. Article 182 in so far as it is material is as follows :

'Descriptionof application.Periodof limitation.Timefrom which period begins to run.

182.For the execution of a decree or order of any civil Court notprovided for by Art. 183 or S, 48 C P.C.

Threeyears; or where a certified copy of adecree or order has been registered six years.. ... ... ...

2,(where there . has been an appeal) the date of the final decree or orderof the Appellate Court or of the withdrawal of the appeal or ....'

But for a proper construction of Clause 2 in column 3 it is useful to set out also Clauses 1, 3 and 4 of the same column which run thus:

'1. The date of the decree or order;

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

4. (where the decree has been amended) the date of amendment.'

Before dealing with decided cases I think it desirable to examine the scheme of this article. The article deals with an application for the execution of a decree or order of a civil Court not provided for by Article 183 or by Section 48, C. P. C., Different dates are given in the third column from which the period of limitation begins to run. The first date is the date of the decree or order. It is obvious that the decree or order in this clause refers to the decree or order the execution of which is being sought. Clauses 2, 3 and 4 appear to provide for cases where there have been proceedings directly connected with the decree or order mentioned in Clause 1. The three contingencies provided are (a) where there has been an appeal, (b) where there has been a review of judgment, (c) where the decree has been amended. The three different proceedings contemplated are proceedings taken after the passing of the original decree or order. There is one thing common to these three classes of proceedings, namely, in each of these a new decree emerges. It is clear that the decree in Clause 4 refers to the decree which is the subject matter of the execution petitiion. I think it is equally clear that the judgment in Clause 3 refers to the judgment which is the basis of the decree or order sought to be executed. On the same analogy, it appears to me that the appellate decree or order mentioned in Clause 2 refers to the decree or order for the execution of which the application is filed. Clauses 2 3 and 4 in their context obviously have a meaning and significance only in relation to Clause 1 under which the date of the original decree or order is specified as the starting point. When the review and amendment which result in postponing the starting point of limitation have a direct connection with the original decree or order, the appeal mentioned inClause 2 must likewise be directly connected with the original decree or order. Reading all these clauses together and giving the words a plain common sense meaning no other construction seems to be possible.

4. In my opinion, the language of Clause 2 indicates that the appeal referred to therein is an appeal from the original decree or order mentioned in Clause 1. The clause states that where there has been an appeal the starting point shall be the date of the final decree or order of the appellate Court or the withdrawal of the appeal. Now we know that an appeal from the original decree may result in confirmation, modification or setting aside of the original deoree. It is a well accepted principle of procedural law that once there has been an appeal the original deoree is set at large and even when the original decree is confirmed in appeal, the final decree is the decree of the appellate Court. Of course when there has been a modification, undoubtedly the appellate decree is the only decree which can be executed. When an appeal is withdrawn before hearing, it may not be accurate to say that the appellate Court passes another decree. Nevertheless, the enactment gives to the decree, holder the benefit of the period during which the original decree or order was pending in the appellate Court. Reading column 1 and Clause 2 of column 8 it seems to me that the final decree or order of the appellate Court is the decree or order for the execution of which an application is filed. The scheme of Clauses 1 to 4 of the third column appears to provide for four different dates in four contingencies, namely, (1) the date of the original decree or order, (2) the date of the appellate decree or order, (3) the date of the decree as reviewed, (4) the date of the amended decree.

5. Though the matter looks simple, when we go by the plain language of the enactment, it becomes complicated once considerations of anomalies and hardship in actual application come in I am not aware of any law which does not in some particular case work hardship; nor is there any law on a particular subject matter which does not fail to adequately deal with some exceptional aspect or provide for a rare contingency. In such a case, there is always present a tendency to strain the language of the enactment so as to avoid an anomaly or to prevent hardship. Following such a tendency, learned Judges from early times have tried to interpret the word 'appeal' in Clause 2 of column 3 as not necessarily referring to an appeal from the original decree in the suit. The widest connotation to that term was given thus by Kulvant Sahay J. in Somarsingh v Deonandan Prasad, 6 Pat. 780 as an appeal which in any way imperils the decree sought to be executed. Logically speaking this would lead to the position that if after a decree has been passed in a suit, there is years later a suit to set aside that decree and there is an appeal against the decree in that suit, time would have to be computed from the date of the appellate decree in the later suit. I do not see any objection to this extension once we accept the principle that the appeal need not be directly against the original decree. Learned Judges have therefore tried to impose a limitation for which again there is no warrant in the enactment itself, namely, that the appeal must be in the suit besides being likely to affect the decree sought to be executed. This is the view which appealed do Venkataramana Rao J. in Koyakutti v. Veerankutti : AIR1937Mad421 affirmed on L. P. Appeal in Veerankutti v. Koyakutti, I. L. R. (1989) Mad. 828 and to King and Krishnaswami Aiyangar JJ in Sriramachandra v. Venkateswara, I. L. R. (1939) Mad. 252. The earliest decision which supports this view is in Lutiful Huq v. Sumbhudin Pattuck, 8 Cal. 248. In that case it was held that limitation for the execution of an ex parte decree ran from the date of the dismissal of an appeal from an order rejecting an application to set aside the ex parte decree. The ratio decidendi of that decision is contained in the following sentence in the judgment of Morris J :

'The application to revise the suit really kept the decree open and that decree did not become final until the order of the appellate Court was passed on 19-12-1877' (i. e., in the appeal arising out of the application to set aside the ex parte decree).

With great respect to the learned Judge, I think he overlooked the fallacy underlying that reasoning. If the application to revive the suit really kept the decree open, then, even if there had not been an appeal against the rejection of that application, time should be computed from the date of the disposal of that application. But for this there is no basis in the language of column 3. So far as I am aware, it has never been held that time to execute an ex parte decree would not commence to run from the date of the decree when there is application to set aside that decree. Supposing for the sake of argument that such an application is not disposed of till three years from the date of the decree sought to be executed, can it be contended that the decree would not get barred after three years? The reason of Morris J. inLutiful Huq v. Sumbhudin Pattack, 8 Cal. 248 is really based on a ground which cannot be maintained. Unless one is able to subscribe to the view that any proceeding which is likely to imperil the decree sought to be executed automatically suspends the running of time for execution of the decree, a view which has never been adumberated, it appears to me impossible to hold that in one contingency, namely, if there happens to bean appeal in any such proceeding time would run from the date of the decree in such an appeal. An ex parte decree is as much imperilled by an application to set it aside as by an appeal against an order rejecting such application. Yet it has never been held that where there has been no appeal, the date of the disposal of the application is the starting point under column 3 of Article 182. With very great respect to the learned Judges who followed the ruling in Lutiful Huq v Sumbhudin Patuck, 8 Cal. 248, I am constrained to say that this anomaly has been completely overlooked by them.

6. The view of Morris J. in Lutiful Huq v. Sumbhudin, 8 Cal. 248 was expressly dissented from in Jivaji v. Ramchandra, 16 Bom. 123. Birdwood and Parsons JJ. held that the appeal referred to in the clause corresponding to Clause 2 of column 3 of Article 192 clearly appeared from the context to be an appeal from the decree or order sought to be executed. In that case the decree-holder sought to compute time from the date of the dismissal of an appeal from an order refusing to set aside the ex parte decree. Referring to Lutiful Huq v. Sumbhudin, 8 Cal. 248, the learned Judges say :

''The infructuous efforts of the defendant to set aside the plaintiff's decree cannot have the effect of extending, the period within which the plaintiff was allowed by law to execute it.'

Even in Calcutta the view was not followed. In. Baikantanath Mitra v. Aughorenath Bose, 21 Cal. 387. Petheram C. J. and Beverley J. were of opinion,

'that the 'final decree' mentioned in that article must be the final decree in the suit and cannot be held to include an order in appeal upon an application to set aside that decree under Section 108 of the Code.' (Order 9 Rule 13 of the present Code.)

In Fakirchand v. Daibacharan, 54 Cal. 1052, Page and Graham JJ. dissented from Lutiful Huq v. Sumbhudin Pattuck, 8 Cal. 248. They took it as clear on principle and concluded by authority that 'decree on appeal' means 'decree on appeal from the decree to obtain execution of which the application is made.' In their opinion no other view was possible. The case in Lutiful Huq v. Sumbhudin Pattuck, 8 Cal 248, was according to them wrongly decided and could not be regarded as good law (vide also Profulla Kumar v. Mt. Saroj Bala, 35 C. W. N. 155. In Rai Brijraj v. Nauratanlal, 3 Pat. L. J. 119, the Patna High Court too dissented from Lutiful Huq v. Sumbhudin Pattuck, 8 Cal. 248. In Madras, a singleJudge (Madhavan Nair J.) also took a view contrary to Lutiful Huq v. Sambhudin Pattuck, 8 Cal 248 in Ahammad Kutty v. Kottikkat Kuttu, 56 Mad. 458. In Somar Singh v. Denonandan Prasad, 6 Pat. 780, no doubt Kulvant Sahay J. expressed the opinion that the intention of the legislature 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 but he was not prepared to say that Rai Brijraj v. Nauratanlal, 3 Pat. L. J. 119, was wrongly decided in so far as it held that 'where there has been an appeal' means 'where there has been an appeal against a decree in the suit' and would not include an appeal against an order made on an application to set aside that decree. He distinguished that case from the case before them on the ground that in the latter there was an appeal against the decree in the suit. There was a preliminary decree in a mortgagesuit against which there was an appeal to the High Court. During the pendency of the appeal the mortgagee decree-holder obtained a final decree for sale. The appeal to the High Court against the preliminary decree was dismissedsubsequently. It was held that limitation for execution of the final decree ran from the date of the final disposal of the appeal against the preliminary decree by the High Court. In my opinion, the case of an appeal from a preliminary decree stands on an entirely different footing from the other classes of appeals against interlocutory orders in the same suit and from appeals against decrees in other suits. An appeal against a preliminary decree is as much an appeal against the final decree also, as the only final decree which can be executed would be the final decree as affected by the decision of an appellate Court or fey the decision in an appeal against the preliminary decree. A preliminary decree in a mortgage suit is not a decree capable of execution as such and as the final decree would depend upon the preliminary decree, an appeal against the preliminary decree necessarily implies an appealagainst the final decree in so far as it depends on the former.

7. In Sheoprasad v. Anrudh Singh, 2 ALL. 273, it was held by a Division Bench that the words 'where there has been an appeal' in Clause 2 of Article 167 of Schedule II, Limitation Act of 1871 contemplate and mean an appeal from the decree and do not include an appeal from an order dismissing an application to set aside a decree. In Narasingh Sewak Singh v. Madho Das, 4 ALL. 274, another Division Bench without disapproving of the earlier decision distinguished it on the facts before them in which there had been a review of judgment and then an appeal from the decree passed on review. The time for filing an application for execution was held to run not from the date of the original decree but from the decree of the appellate Courtin the appeal filed against the amended decree. The ground on which Sheo Prasad v. Anrudh Singh, 2 ALL. 273, was distinguished was that 'in that case there had been no appeal from any decree.' The preponderance of authority in the several Courts was therefore that the appeal referred to in Clause 2 of column 8 of Article 182 must be confined to an appeal against the decree in the suit and not extended to an appeal from any interlocutory order in the suit or an appeal in any collateral proceeding.

8. Then came the decision of the Privy Council in Nagendranath De v. Sureschandra De, 60 Cal. 1 It is perfectly plain that the actual decision in the case did not directly bear on the question now before us. In the case before their Lordships there was an appeal against the original decree in the suit. Several Judges have dealt at length with this decision and I cannot usefully add to what has been already said about it. It is not without significance that neither in the judgment of the Judicial Committee nor in the argument is there any reference to the several decided eases in India on this question. The argument was that the appeal was not in proper form and was defective in that all the judgment-debtors were not parties. Sir Dinshah Mulla delivering the judgment of the Judicial Committee said:

'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 or as to the parties to it ; the words mean just what they say.'

Having pointed out that equitable considerations were out of place and strict grammatical meaning of the words is the only safe guide, their Lordships went on to say:

'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.'

Now it is clear that these observations were incidental and only suggested a plausible reason behind the rule, but finally the decision in the case rested on the actual words of the article and not on any theoretical justification of the provision.

9. It is these observations of Sir Dinshah Mull in Nagendranath De v. Sureshchandra De, 60 Cal. 1 , that have been relied on by learned Judges of some of the Courts as supporting the view originally taken in Lutiful Huq v. Sumbhudin Pattuck, 8 cal. 248. The swing of the pendulam is indicated in the decisions of this Court in Koyakutti v. Veerankutti : AIR1937Mad421 , Sriramchandra v. Venkateswara, I. L. R. (1939) Mad. 252 and of other Courts in Firm Dedhraj Lachminarayan v. Bhagwan Das, 16 Pat. 306, Nagappa Bandappa v. Gurushantappa Shankarappa, 57 Bom. 388 and in Narmdabai Narayan v. Hidayatalli A. I. R.1949 Bom.115. But there has also been in other cases a reaffirmation of the view taken in Jivaji v. Ramchandra, 16 Bom. 123, Fakirchand v. Daiba Charan Parni, 54 Cal. 1052 and Brjraj v. Nauratanlal, 3 Pat. L. J. 119. In Mahadeo Bhima-sankar v. Fatumia Hussainbhai, I. L. R. (1948) Bom. 511, the learned Judges Bavdekar and Dixit JJ. held that the expression 'appeal' occurring in Clause 2 of column 3 of Article 182 means an appeal from the decree or order sought to be executed and would not include any appeal which is likely to affect the decree sought to be executed. Dixit J. was satisfied, on an examination of the case, the contentions raised and the actual decision that their Lordships in Nagendranath De v. Sureshchandra De, 60 Cal. 1 , did not intend to lay down that the expression 'appeal' occurring in Article 182 column 3 Clause 2 Limitation Act referred to or embraced an appeal other than an appeal against the decree sought to be executed. In Bahadur Singh v. Sheo Shankar, : AIR1950All327 , Wanchoo and Seth JJ. (a Division Bench of the Allahabad High Court) also held likewise. In that case, there was an application to set aside an ex parts decree which was dismissed and an appeal preferred against that order which was also dismissed and limitation for the execution of the ex parte decree was sought to be computed from the date of the dismissal of the appeal. The learned Judges held that time ran from the date of the original ex parte decree. Though I do not agree with every observation made by Seth J. in his judgment, I am in entire agreement with the conclusion arrived at by him.

10. In a recent decision of the Supreme Court of India in Bhawanipure Banking Corporation Ltd. v. Gouri Shankar 1950 S. C. J. 171, the expression 'where there has been an appeal' came up for construction. The material facts in the case are as follows : On 21-8-1940, a preliminary mortgage decree was passed ex parte. There was an application to set aside the ex parte decree but this was rejected. On 11-7-1941 the judgment-debtor filed the application under Section 36, Bengal Moneylenders Act, for reopening the preliminary decrre. But this application was dismissed for default of appearance. A final mortgage decree was then passed on 22-12-1941. The judgment-debtor then made an application under Order 9, Rule 9, Civil P. C. for the restoration of his application under Section 36, Bengal Money-lenders Act. This application was dismissed on 1-6-1942 and the judgment-debtor thereafter preferred an appeal to the High Court against the order dismissing the application. This appeal was dismissed on 3-7-1944. On 9-4-1945 the decree-holder filed an application for execution which was dismissed for default and he filed another application on 2-6-1945. The question which the Supreme Court had to decide was whether the application was in time. It was obviously more than three years after the date of the final mortgage decree and was prima facie barred by time.

It was contended on behalf of the decree-holder that it was saved from the bar of limitation if time were calculated in accordance with the provisions of Clause 2 or Clause 3 of column 3 of Article 182. But the learned Judges overruled the contention and held that the application was barred by time. We are not concerned with Clause 3. The argument based on Clause 2 was that the words 'where there has been an appeal' were comprehensive enough to include an appeal from the order dismissing the application under Order 9, Rule 9, Civil P. C. made in connection with the proceeding under Section 36, Bengal Money-lenders Act. Fazl Ali J. delivering the judgment of the Court repelled this argument thus :

'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 column I 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.' Though there is no long discussion of the divergent views which had been prevailing in the several Courts, presumably their Lordships were aware of the case law on the point In my opinion, the opinion expressed by the Supreme Court is against the view which gives a very wide meaning to She expression 'where there has been an appeal.' A Full Bench of the Patna High Court in Rameswar Prasad v. Parmeshwar Prasad, : AIR1951Pat1 has also come to the same conclusion and overruled the decision in Firm Dedhraj Lachminarayan v. Bhagwan Das, 16 Pat 306.

11. The state of authority now is that the High Courts of Allahabad, Calcutta Bombay (save in one decision of a Single Judge) and Patna have adopted what has been sometimes called the narrower interpretation of the word 'appeal' and the recent decision of the Supreme Court of India supports them. On a careful examination of the two decisions of our Court which take a different view, namely, Koyakutti v. Veerankutti : AIR1937Mad421 (confirmed on appeal in Veerankutti v. Koyakutti, I. L. R. (1939) Mad. 828 and Sriramachandra v. Venkateswara, I. L. R. (1939) Mad. 252, I find that the entire reasoning of the learned Judges in the two cases is based on the observations of the Privy Council in Nagendranath De v. Sureschandra De, 60 Cal. 1 already adverted to earlier on in this judgment. King J. for instance says I. L. R. (1939) Mad. 252:

'And ii is, of course, obvious that the 'intelligible rule' laid down by their Lordships in the concluding sentence of the second passage quoted must apply to the facts of the present case, where the success of an appeal against an order refusing to set aside an ex parte decree has precisely the same effect in regard to execution as a successful appeal against the decree itself' (at page 267).

What King J. apparently overlooked is that on the same reasoning, an ex parte decree will be affected by the result of a successful application to set it aside quite as much as by the success of an appeal against an order refusing to set aside the ex parte decree, but there is no provision under which time can be computed from the date of the disposal of such an application. I can discover no conceivable reason why the decree-holder should get the benefit of the time spent over an application to set aside an ex parte decree and the time taken for an appeal against an order on that application, but should not get the benefit of the time Saken for the application when there is no appeal And yet that is exactly what the learned Judges who advanced the 'imperilling' theory failed to notice. The learned Judge (King J.) refused to meet the situation which was pressed before him as necessarily following from the acceptance of the wide interpretation of the word 'appeal' which the learned Judges in that case were adopting, namely, a situation in which there had been a separate suit to set aside a decree on some such ground as that of fraud and the filing of an appeal against a decree in that suit. It must also be mentioned that King J. expressly followed the decision of the Patna High Court in Firm Dedhraj Lachminarayan v. Bhagwandas, 16 Pat. 306 as a direct authority on the facts before him. As mentioned above, this decision has since been overruled by the Full Bench of that Court in Ramashwar Prasad v. Parmeshwar Prasad, : AIR1951Pat1 With great respect to the learned Judges who decided Koyakutti v. Veerankutti : AIR1937Mad421 , Sriramachandra v. Venkateswara, I. L. R. (1939) Mad. 252 and Veerankuttt v Koyakutti, I. L R. (1939) Mad. 828, I would dissent from their interpretation of the word 'appeal' in Clause 2 of column 3 of Article 182. 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. This, I think, irresistibly follows from reading col. 3 along with col. 1 of the Article. In the case of an appeal against an order refusing to set aside the 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. That appears to be conclusive of the matter.

12. In some of the cases to which reference has been made above, there was an appeal against the preliminary decree in a mortgage suit and an appeal therefrom; the question was whether for the execution of the final decree in such a case, time could be computed from the date of the disposal of the appeal against the preliminary decree. I am of opinion that it could be, but not because of the 'imperilling' theory. An appeal against apreliminary decree involves an appeal against the final decree which follows that preliminary decree. Though the terminology gives an impression that there are two decrees, I think the correct legal position is that there is only one decree in a suits in the sense that it is the expression of an adjudication determining the rights of the parties with regard to all the matters in controversy in the suit. A preliminary decree is merely a stage in working out the rights of parties which are finally determined by the final decree. An appeal against a preliminary decree would be an appeal within the meaning of the word 'appeal' in Clause 2 of col. 3. With respect I agree with the following observations made by Dawson-Miller C. J. in Somarsingh v. Deonandan Prasad, : AIR1928Pat581 :

'There can be no doubt that the appeal to the High Court from the preliminary decree had it been successful would have had the effect of discharging the final decree passed by the trial Court as well as the preliminary decree. It seems to follow, therefore, as a matter of course that the appeal in this case was not only an appeal from the preliminary decree but an appeal from all that naturally followed by the passing of that decree, namely, the final decree for sale which after all is merely part of the machinery prescribed for carrying out the direction for sale contained in the preliminary decree.'

In the case before us there was only an application to bring on record the respondent as the legal representative of the defendant alleged to have died and a petition under Section 115, Civil P. C. to revise the order dismissing that application. Assuming the word 'appeal' includes a civil revision petition as decided by the Full Bench in Chidambaranadar v. Rama Nadar, I. L. R. (1937) Mad. 616 it is obvious that it is not the order on the civil revision petition that is being executed. That order cannot be the final decree or order of the appellate Court referred to in Clause 2 of col. 3 of Article 182. The execution petition was therefore rightly dismissed.

13. The civil miscellaneous second appeal is dismissed with costs.

14. Panchapakesa Ayyar, J.--I agree.

15. Viswanatha Sastri J.--I agree. Were it not for the importance of the question at issue and for the fact that we are overruling the considered decision of a Division Bench in Sriramachandra v. Venkateswara, I. L. R. (1939) Mad. 252 which was subsequently followed by this Court, I should have been content to express my formal concurrence in the judgment of my Lord. In the circumstances I shall proceed to state ray reasons briefly. Interpreting Clause 8 of col. 3 of Article 182, Limitation Act the Judicial Committee observed:

'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' (Nagendranath De v. Sureshchandra De, 60 Cal. 1 P. C.)

The only way of finding out the intention of Article 182 (2), Limitation Act is for me to read it inthe context in which it occurs, remembering that words and expressions take their colour from their environment and see what is the plain and ordinary meaning of the words 'where there has been an appeal, the date of the final decree or order of the appellate Court' in Article 182 (2). The proper way of reading Article 182 is to take col. 3 together and Clauses (1) to (4) in col. 3 so as, if possible, to give an interpretation which is both consistent and in accordance with general legal principles. Column 1 of Article 182 describes the nature of the application as being an application for the execution of a decree or order. Clause 1 of col. 3 of Article 182 refers to the date of the decree or order, which must mean, the date of the decree or order under execution. When Clause 2 of col. 3 of Article 182 refers to an appeal, without expressly describing the thing which is the subject of appeal, the clause must be read along with col. 1 of Article 182 and Clause l of col. 3 of that article. So read, the word 'appeal' in Clause 2 of col. 3 of Article 182 means an appeal from the decree or order described in col. 1, and Clause l of col. 3 namely, the decree or order the execution of which is sought. It is as if Clause 2 of col. 3 of Article 182 ran in these terms:

'Where there has been an appeal from the decree or order the execution of which is sought, 3 years, from the date of the final decree or order of the Appellate Court.'

The period of limitation is determined by col. 2. The thing that is the subject of 'appeal' in Clause 2 of col. 3 is indicated by reference to col. 1 of Article 182 and the juxtaposition to Clause l of col. 3 of the article. The genius of the English language or its idiosyncrasy, if you like, recognises such elliptical forms of expression, leaving something which has been previously expressed to be understood in what is said later in the same complex sentence.

16. The draftsman of Article 182 has been somewhat laconic which is not a matter for surprise when 183 methods of non-suing a litigant had to be devised and formulated instead of a few simple provisions easily understood and applied as in the English statutes. The construction contended for by the appellant and accepted by this Court in Sriramachandra v. Venkateswara, I. L. R. (1939) Mad. 252 involves the reconstruction of Clause 2 of Col. 3 of Article 182 as follows :

'Where there has been an appeal from any decree or order capable of affecting or imperilling the decree or order sought to be executed, the date of the final decree or order of the Appellate Court.'

I cannot take so much liberty with Clause 2 of Col. 3 of Article 182 when reading it with col. 1 and Clause 1 of Col. 8 as it should be it is easily understood and applied as it stands.

17. This interpretation is also in accord with the scheme of our Civil Procedure Code. Under Order 41, Rule 5 the filing of an appeal from a decree or order does not suspend the operation of the decree or order unless the appellate Court so directs. Where however an appeal is preferred from a decree, the Court of appeal is really seised of the whole suit and has the powers of the trialCourt, though the relief given by it will ordinarily, but not necessarily, be limited to the portion of the decree appealed against. See Section 107 and Order 41, Rules 4 and 33, Civil P. C. An appeal is considered as a continuation of the suit for purposes of res judicata and lis pendens. Clause 2 of col. 3 of Article 182 proceeds on this judicial view of the nature and effect of an appeal from a decree. See per Bhashyam Aiyangar J. in Kristnamachariar v. Mangammal, 26 Mad. 91 ; per Gwyer C. J. in Shyamakanth Lal v. Rambhajan Singh, 1939 F. C. R. 193 ; per Varadachariar J. in Lachmeswar Prasad v. Keshwar Lal, 20 Pat. 429 Whether the appellate decree confirms, modifies or reverses the original decree, the original decree is merged in the decree of the appellate Court and the final decree to be executed is the decree of the appellate Court. Hence it is that special statutory provision is made in Section 37, Civil P. C., for execution of an appellate decree by the trial Court itself. Viewed in this light the words 'where there has been an appeal' in Clause 2 of col. 3 of Article 182 must naturally refer to an appeal directly from the decree or order sought to be executed.

18. Clause 2 of col. 3 of Article 182 is part of a fasciculus of clauses dealing with cases where the finality of a decree or order is directly sought to be affected by an appeal from or review or amendment of that very decree or order. Surely it cannot be contended that the review contemplated in Clause 3 or the amendment contemplated in Clause 4 of col. 3 of Article 182 can refer to any decree or order, other than the decree or order sought to be executed and which has been subject of a review or amendment. Clauses 3, 3 and 4 of col. 3 of Article 182 alike contemplate and provide for cases where the decree or order whose execution is sought has been directly the subject of an appeal, review or amendment. In my view, it would be impossible to read these clauses as meaning that if any order passed in the course of a suit is taken up on appeal or is sought to be reviewed or amended, the date of the disposal of the appeal, review or amendment as the case may be furnishes the starting point of limitation for the execution, not of that order, but of a decree that might be passed in the suit from which no appeal has been preferred or of which no review or amendment has been sought.

19. The legislative history of Article 182 (2) also confirms this view. Before the enactment of Article 182, Limitation Act of 1908, Article 179, Limitation Act of 1877 and Arts. 167 and 168, Limitation Act of 1871 which corresponded to Article 182, were interpreted in the same manner in which we are now inclined to construe Article 182 (2). With the exception of Lutiful Huq v. Sumbhuddin Pattuck, 8 Cal. 248 which was dissented from in Jivaji v. Ramachandra, 16 Bom. 123 and Baikantanath Mitra v. Aughorenath Bose, 21 Cal, 387, it had been generally held by the High Courts that thewords 'where there has been an appeal' in Article 179 (2), Limitation Act of 1871 meant 'where there has been an appeal from the decree for whose execution application is made'. See alsoShea Prasad v. Amrudh Singh, 2 ALL. 273. Where the language of an enactment has received judicial interpretation and the legislature again employs the same language in a subsequent enactment dealing with the same subject matter, the presumption is that the legislature intended that the language so used by it in the subsequentenactment should be given the meaning which in the meantime had been judicially attributed to it. From this point of view also, the view which we are taking of the meaning of Article 182 (2) is justified. In my humble opinion Article 182 (2) offers no choice of interpretation and only a sophisticated reading could import any ambiguity into its meaning.

20. I must now refer to a passage in the judgment of the Judicial Committee in Nagendranath De v. Sureshchandra De, 60 Cal. 1 which has provided a jumping off ground for those who tried to leap the statutory fence. Sir Dinshaw Mulla observed:

'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.'

This passage has been relied upon for what has been called a 'beneficial' interpretation of Article 182 (2), that is to say an interpretation according to one's own notions of what is just,convenient and equitable. I humbly venture to think that this judicial vindication of legislative wisdom was not quite necessary for the purpose of the case before the Judicial Committee. The decision of the Judicial Committee rested on a liberal reading of Article 182 (2) without any gloss or qualification. It is unfortunate that the above passage from the judgment of the Board got crystallised into a test and was applied as a touchstone to other cases calling for the application of Article 182 (2). This passage has by degrees been allowed to obscure and even modify or alter the plain meaning of Article 182 (2), as if it was a statutory explanation appended to the article. It is not for me to say nor do I know for certain what the legislature may or may not have had in its mind when it enacted Article 182 (2) in the terms it did. I am bound by what it has said and left unsaid. The Judicial Committee sought to justify Article 182 (2) on grounds of convenience. Other reasons might be suggested and earlier in this judgment, I have indicated the judicial basis of this provision. I am therefore unable with great respect to read the passage in the judgment of the Judicial Committee, as if it laid down a principle of general application in interpreting the Article of the Limitation Act.

21. My Lord pointed out in the course of the arguments and has also indicated in his judgment the anomalous consequences of the opposite construction. If the view that any proceeding which is likely to imperil a decree sought to be executed suspends the running of time--a view opposed to the provisions of Order 41, Rule 5, Civil P. C.,--is to be acted upon, I do not know where we are to stop or why we should draw a line between proceedings in the same suit and proceedings in another suit as the learned Judges did in Sriramachandra v. Venkateswara Rao, I. L. R. (1939) Mad. 252.

22. I consider that the recent decision of the Supreme Court in Bhawanipore Banking Corporation Ltd. v. Gowri Shankar, : [1950]1SCR25 is decisive of the point now under consideration. Their Lordships expressed the view that the words 'where there has been an appeal' in Clause 2 of col. 3 of Article 182 must be read with col. 1 of that article and could not 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'. Though there is no reference to the earlier decisions of the High Courts the learned counsel who appeared and the eminent Judges who decided the case must well have been aware of the difference of opinion between the High Courts. Apparently the Supreme Court thought that the construction of Article 182 (2) was so simple that it did not require elaboration by reference to precedents. However all the earlier decisions have been reviewed by my Lord in his judgment and I respectfully agree with him in his appraisal of their value. I also agree that an appeal from a preliminary decree may perhaps stand on a somewhat different footing from appeals against interlocutory orders in the same suit. I agree that the civil miscellaneous second appeal should be dismissed with costs.


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