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Basanta Kumar Roy and ors. Vs. Manjuri Dasi and ors. - Court Judgment

LegalCrystal Citation
Subject Limitation
CourtKolkata
Decided On
Reported inAIR1924Cal349
AppellantBasanta Kumar Roy and ors.
RespondentManjuri Dasi and ors.
Cases ReferredBupsingh v. Mukhraj Singh
Excerpt:
- .....application for execution would be within time. but the judgment-debtors contend that there was no bona fide appeal so as to bring the case under the provisions of the second paragraph of column 3 of article 182, and the reason for stating that the appeal was not bona fide is that ad valorem court-fee was not paid on the memorandum of appeal, and that the appeal was dismissed by this court upon the ground that it was incompetent, as the appeal was not valued and proper court-fees had not been paid. the appellants rely upon the case of dianatullah beg v. wajid ali shah (1884) 6 al. 438 in support of their proposition that the period of limitation should not be reckoned from the date of the decree of the high court dismissing the appeal on the 5th of may, 1919. in that case, it appears.....
Judgment:

1. In this case, the judgment-debtors are the appellants and their plea is that the execution of the decree is barred by limitation. The decree in this case was passed by the Court of first instance on the 29th of July, 1915. There was an appeal by the plaintiff's, who are the decree-holders, to the High Court and the appeal was dismissed on the 5th of May, 1919. The application for execution of the decree was presented on the 5th of December, 1919 : under paragraph 2 of the third column of Article 182 of the Indian Limitation Act, there is no doubt that the application for execution would be within time. But the judgment-debtors contend that there was no bona fide appeal so as to bring the case under the provisions of the second paragraph of column 3 of Article 182, and the reason for stating that the appeal was not bona fide is that ad valorem Court-fee was not paid on the memorandum of appeal, and that the appeal was dismissed by this Court upon the ground that it was incompetent, as the appeal was not valued and proper Court-fees had not been paid. The appellants rely upon the case of Dianatullah Beg v. Wajid Ali Shah (1884) 6 Al. 438 in support of their proposition that the period of limitation should not be reckoned from the date of the decree of the High Court dismissing the appeal on the 5th of May, 1919. In that case, it appears that the appeal was not admitted on the ground, of the deficiency of the Court-fees, and it was held by that Court that there was no appeal or a final decree or order of an; appellate Court within the meaning of Article 179(2) of the Limitation Act of 1877. That is not the case here. There is no doubt that the appeal was admitted in this case. It was heard by the Court and a decree was pronounced dismissing the appeal; and it cannot, therefore, be said that there was no appeal within the provisions of Article 182(2) of the Limitation Act. It is argued on behalf of the appellants that the word 'appeal' must be read, to mean bona fide appeal. But we are unable to accept this contention because, if this were accepted, the result would be that in every case, the Court of execution would have to decide the question whether any appeal preferred from the decree was a proper and bona fide appeal or not. In our opinion, that cannot be the meaning of the provisions of Article 182 (2) of the Limitation Act. On the other hand, there is the case of Bupsingh v. Mukhraj Singh (1885) 7 All. 887. In that case it was held that, where a Judge of the Court exercising jurisdiction in respect of the registering of appeals made an order dismissing an appeal on the ground of deficient payment of Court-fee, the order was equivalent to a decree, and that limitation would run with regard to execution from the date of that order. The real question in this case, therefore, is whether there was an appeal of which this Court had seizin and which was determined by a judgment of this Court. If that was so, it would bring the provisions of Article 182(2) of the Limitation Act into operation, and the period of limitation for execution of the decree would run from the date of the final decree or order of the appellate Court. The appellants cited some other cases in support of their contention; but, in our opinion, these cases do not really touch the present question. We think that the decision appealed against is right and the appeal should be dismissed with costs. We assess the hearing fee at five gold mohurs.


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