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Kali Prosunno Basu Roy and ors. Vs. Lal Mohun Guha Roy - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in(1898)ILR25Cal258
AppellantKali Prosunno Basu Roy and ors.
RespondentLal Mohun Guha Roy
Cases ReferredKishen Sahai v. The Collector of Allahabad
Excerpt:
limitation act (xv of 1877), article 179, schedule ii, clause 3 - execution of decree--order allowing amendment of a decree--review of judgment--code of civil procedure (act xiv of 1882), sections 623, 624 and 206. - .....624, i find that the expression 'review of judgment' is used interchangeably with the expression ' review of decree,' that is an amendment of the decree that does not necessitate any alteration in the judgment. if that is so, there seems to be good reason for thinking that a case like the present was intended to be covered by the third clause of article 179. it is not likely that the legislature did not provide for a case like this, where a decree is sub-stant ally altered, although the procedure adopted for having the alteration effected was by way of an applicat on under section 206, and not by way of an application under section 623 of the code. there being no reason for taking the expression ' review of judgment ' in any limited or narrow sense, i think we may take it in a sense such.....
Judgment:

Maclean, C.J.

1. On the 18th November 1891, judgment was given in this case by the Subordinate Judge on an appeal to him. The effect of that judgment was to dismiss the suit against the defendants (the present appellants) with costs in that Court and in the Court below. It subsequently transpired that the decree drawn up, although it gave the defendants their costs before the Subordinate Judge, did not give them their costs before the first Court, and in consequence of that error the present appellants, on the 3rd of March 1894, made an application under Section 206 of the Code of Civil Procedure to have the decree amended and made to harmonise with the judgment, and on the 10th March 1894 that application was granted. On the 26th February 1896, the appellants, who had thus obtained a judgment in their favour for their costs, took proceedings in execution for the purpose of recovering them. Their right to do so was disputed by the judgment-debtor, and disputed upon the ground that article 179 of the second schedule of the Limitation Act was a bar to their claim. The question we have to decide is whether his right to execution is or is not barred.

2. The question to my mind is not free from difficulty, but as the result of the argument we have heard I am of opinion that the appellants ought to succeed and to succeed upon the ground that the order of the 10th March 1894 was substantially an order passed upon a review of judgment within the meaning of article 179 of the second schedule to the Limitation Act, and that being so, the period would run, not from the 18th November 1891, the date of the judgment, but from the 10th of March 1894, the date of the decision passed on the review. I have indicated what was the nature of the application, which resulted in the decree being amended on the 10th March 1894, and looking at Sections 623 and 624 of the Code of Civil Procedure, it would appear that the terms ' review of judgment ' or ' review of the decree ' are applicable, not only to cases where there is something faulty in the judgment itself---I mean the actual judgment pronounced as opposed to the decree---but the cases where there is any mistake or error on the face of the record or any clerical error apparent on the face of the decree. This shows that the term ' review of judgment' is not confined merely to cases where the judgment itself was to be reviewed. This, in my opinion, is the sense in which the term 'review of judgment' is to be read under the above sections of the Code, and, if so, it is not unreasonable to suppose that the Legislature in the Limitation Act used the same term in the same sense, that is, in the sense in which it is used under the Code. I do not think that in this view I am placing too wide or too comprehensive a construction on these words as used in the Limitation Act. My opinion gains support from that expressed by the Allahabad High Court in the case of kishen Sahai v. The Collector of Allahabad (1882) I.L.R. 4 All. 137 where the Judges say this: ' We consider that the proceedings under this application,' which was an application practically similar in its nature to that made in this case in March 1894, ' were substantially of the nature of a review of judgment, and will, under article 167, schedule II of Act IX of 1871, at the time in force, give a period from which limitation will run in respect of the subsequent application for execution which will therefore be within time.'

3. Upon these grounds I think the appeal must succeed, and must be allowed with costs.

Banerjee, J.

1. I am of the same opinion. The question raised in this case is whether the application for execution of decree is barred by limitation. The Courts below have answered that question in the affirmative, and it is contended on appeal before us by the learned Vakil for the decree-holders that the Courts below are wrong in holding that the application for execution is barred by limitation, because in the first place limitation should be reckoned in this case In m the date of the amendment of the decree upon the application under Section 206 of the Code of Civil Procedure; and in the second place, even if that contention fails, the decree-holders should be allowed to reckon time from the date of the application for amendment of the decree under clause 4 of article 179 of the second schedule of the Limitation Act.

In my opinion the second contention is not tenable, because the application that was made was not one to take some step in aid of execution of the decree within the meaning of clause 4 of the said article, the decree itself not having been such as it ought to have been, and the application really being one not for having any step taken in aid of execution, but for having the decree mended, so as to make it fit for execution by the decree-holder. But upon the first contention I think, though not without some hesitation, that the view which the learned Vakil for the appellants asks us to adopt is the correct view.

The date of the dacrae must, no doubt, be taksn to be the data of the judgment; and it is difficult to say that the date of the decree here was the date on which the amendment was made, when the date of the judgment remained unaltered. But, then, there was here an application for amendment of the decree, and for amendment on a most material point, the point being that the costs of the first Court should be made recoverable by the appellants before us. According to the directions contained in the judgment, the appellants before us were entitled to those costs. By some error in the preparation of the decree, this part of the direction in the judgment was left out of the decree. Was the amendment of the decree then a review of judgment within the meaning of the third clause of article 179? If it was, then the decree-holders are entitled lo reckon time from the data of the decision passed on the review, and that data is within three years from the date of the application for expression. The expression 'review of judgment' is not defined anywhere in the Limitation Act, and evidently the Legislature used that expression in the Limitation Act in the sense in which it is used in the Code of Civil Procedure. Now, in the Code of Civil Procedure, on referring to Sections 623 and 624, I find that the expression 'review of judgment' is used interchangeably with the expression ' review of decree,' that is an amendment of the decree that does not necessitate any alteration in the judgment. If that is so, there seems to be good reason for thinking that a case like the present was intended to be covered by the third clause of article 179. It is not likely that the Legislature did not provide for a case like this, where a decree is sub-stant ally altered, although the procedure adopted for having the alteration effected was by way of an applicat on under Section 206, and not by way of an application under Section 623 of the Code. There being no reason for taking the expression ' review of judgment ' in any limited or narrow sense, I think we may take it in a sense such as would include a case like the present; and this view receives some support from the case of Kishen Sahai v. The Collector of Allahabad (1862) I.L.R. 4 All. 137.


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