1. In this case an appeal has been preferred against the decision of Mr. B.M. Mitra, Additional District Judge of the 24-Perganas in which he held that the decree-holders' application for the execution of a certain decree was time-barred. The decree-holders have appealed against this decision. It appears that the appellants obtained their decree on 19th February 1930. The material portion of the decree of the first Court was in the following terms:
The plaintiff's title to the land mentioned in the schedule above is hereby declared and the plaintiff will get khas possession by evicting the defendants. The defendants are allowed one month's time to vacate the land. The plaintiff will take possession through Court with the help of a pleader commissioner who will deliver them possession excluding the land on which the Masjid stands.
2. It appears that after the decree had been obtained by the decree-holders on 19th February 1930, there was an appeal by the judgment-debtor; but owing to the fact that the court-fees were not paid, this appeal was rejected with costs on 7th September 1932. The main point urged by the learned advocate for the appellants in this case is that the order rejecting the judgment-debtor's appeal on 7th September 1932 itself amounted to a decree and, this being the case, this decree embodied all the terms and conditions of the decree of the first Court dated the 19th February 1930. In these circumstances the learned advocate contends that the period of limitation should run not from 7th September 1932, but from 7th October 1932, so as to enable the decree-holders to benefit by the month's grace which had been allowed to judgment-debtor by the first Court. He further contends that this case is governed not by Article 182, Limitation Act, but by Article 181. In support of his contention, the learned advocate has placed considerable reliance upon a decision of the Judicial Committee of the Privy Council in Rameshwar Singh Bahadur v. Homeswar Singh AIR 1921 P C 31 which is to the effect that a decree which cannot be executed cannot be time-barred and that when the Limitation Act prescribes three years from the date of a decree or order as the period within which it must be enforced, this refers to an order or decree made in such a form as to render it capable in the circumstances of being enforced. In view however of the circumstances of the case now before us, it does not appear that the principle laid down by the Judicial Committee in the above cited case can have any application, because we are of opinion that the decree of the Appellate Court dated 7th September 1932 was actually executable on that date and, this being the case, there can be no question of taking this decree out of the provisions of Article 182, Limitation Act, and applying the provisions of the preceding Article, viz. Article 181.
3. We arrive at this conclusion by reason of a consideration of the terms of the decree of the first Court. That decree states clearly that the plaintiffs will be entitled to get khas possession of the suit lands by evicting the defendants. The further statement to the effect that the defendants are allowed one month's time to vacate the land allows a temporary concession to the defendants, which is entirely unconnected with the main provisions of the decree. This concession was in effect nothing more than a temporary stay order (in the nature of an addendum to the decree proper) which in the normal course must have expired within one month from the date on which it was made. It has not been contended that when the judgment-debtor No. 22 filed his appeal, he obtained any further stay order. The mere filing of the appeal by him could not in itself operate to stay the execution of the original decree. It seems therefore only logical and reasonable to hold that the rejection of the judgment-debtors' appeal by the Appellate Court while having the effect of affirming the first Court's decree as such did not operate to revive the stay order added to the decree or to give the defendants any new concession as regards the time within which they were to vacate the land. Therefore, that part of the first Court's decree which embodied the concession must be deemed to have ceased to operate after the expiry of a month from the date of the decree.
4. The learned advocate for the appellants sought to support his argument by referring to a decision of this Court in Noor Ali Choudhuri v. Koni Meah (1896) 13 Cal 13, in which it was held that the terms of the trial Court's decree must be presumed to be incorporated in the terms of the appellate decree. It appears however from the facts of that particular case that a decree for arrears of rent had been passed against the appellant, coupled with an order that if the arrears so decreed were not paid within 15 days from the date of the decree, the appellant should be liable to ejectment from his holding. An appeal preferred by the defendant was dismissed and within 15 days from that date he paid into Court the amount of the arrears of the decree. It was contended that this sum should have been paid by him within 15 days of the decree of the original Court, but this contention was overruled. It must, however, be observed from a consideration of that case that the defendant's liability or non-liability to ejectment depended upon whether he paid the arrears due by him within a specified time and the time for paying these arrears was therefore an essential term of the decree. The facts of another case, Nam Narain Singh v. Lala Raghunath Sahai (1895) 22 Cal 467, are similar. The facts of those two cases are clearly distinguishable from those of the case now before us and in our opinion they are of no material assistance to the appellants. In view of what is stated above, the decision of the lower Court must be affirmed and this appeal dismissed with costs.
Costello, Ag. C.J.
5. I agree.