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Lulit Sing and anr. Vs. Wazir Mahton and anr. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtKolkata
Decided On
Judge
Reported in(1883)ILR9Cal100
AppellantLulit Sing and anr.
RespondentWazir Mahton and anr.
Excerpt:
execution - limitation act (xiv of 1877), schedule ii, article 179, para. 2--'appellate court.' - .....it was in accordance with the award of the arbitrators appointed in the case. there was a second appeal preferred by the defendants, and the court upheld the view of the lower appellate court that there was no appeal. the judgment of this court is dated the 12th march 1881. on the 22nd june 1881, the present application for execution of the decree was filed. it is contended that, under article 179, the application being filed more than three years from the date of the decree of the 19th december 1871, is barred. we do not think that this contention is correct, because the 2nd para. of article 179 says, 'where there has been an appeal, the date of the final decree or order of the appellate court,'--that is to say, where there has been an appeal, three years are to be counted from the.....
Judgment:

Mitter, J.

1. Two objections have been urged against the decision of the lower Court. The first is that the application for execution is barred under Article 179 of Schedule ii, Act XV of 1877. It appears that the decree of the first Court was passed on the 19th December 1877, in accordance with an arbitration award. An appeal was preferred by the defendants, against whom the decree was passed; they contended that the decree should not have been in accordance with the award. The Appellate Court, after entering into the objection raised by the defendants, canoe to the conclusion that no appeal lay against the decree of the first Court, because it was in accordance with the award of the arbitrators appointed in the case. There was a second appeal preferred by the defendants, and the Court upheld the view of the lower Appellate Court that there was no appeal. The judgment of this Court is dated the 12th March 1881. On the 22nd June 1881, the present application for execution of the decree was filed. It is contended that, under Article 179, the application being filed more than three years from the date of the decree of the 19th December 1871, is barred. We do not think that this contention is correct, because the 2nd para. of Article 179 says, 'Where there has been an appeal, the date of the final decree or order of the Appellate Court,'--that is to say, where there has been an appeal, three years are to be counted from the date of the final decree or order of the Appellate Court. There is no question that in this case there was an appeal; although both the Appellate Courts held that no appeal would lie. The case, therefore, comes within these words of Article 179, viz., 'where there has been an appeal.' The next question is whether there is any decree or order of the Appellate Court. There were orders no doubt of the Courts to which the appeals were preferred rejecting the appeals on the ground that no appeal would lie. The words 'Appellate Court,' in our opinion, here mean the Court or Courts to which the appeals mentioned in the section have been preferred. The meaning of this clause, therefore, in our opinion, is, that where there has been an appeal, the period is to run from the date when the Court to which that appeal has been preferred passes an order disposing of the appeal. That being so, it is quite clear that the present application is within time. The second objection taken is this: It appears that the defendants, while the original suit was pending in the first Court, deposited Rs. 140, alleging that that was all that was due from them to the plaintiffs. The decree subsequently passed was for a larger amount. Then, in the petition for execution, the plaintiffs (decree-holders) calculate interest upon the whole of the amount decreed from the date of the decree to the date of the application. The defendants object, on the ground that the plaintiffs (decree-holders) were bound to take out the money which was deposited in Court immediately on the passing of the first decree, and that there was nothing to prevent the decree-holders from withdrawing this money from the Court then, and therefore, in calculating interest, this amount should have been deducted from the amount of the decree on the date of the decree. The learned pleader for the respondents fairly admitted that this is a reasonable contention. We are also of that opinion. The decree-holders, therefore, in calculating the interest from the date of the decree should take the amount decreed minus the amount deposited as the principal. With this modification in the decree of the lower Court we dismiss the appeal with costs.

2. As the appellants have failed in their main ground, they must pay the respondents the costs of this appeal.


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