Skip to content


Loke Nath Singh and ors. Vs. Gaju Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtKolkata
Decided On
Judge
Reported in31Ind.Cas.426
AppellantLoke Nath Singh and ors.
RespondentGaju Singh and ors.
Cases ReferredAshfaq Husain v. Gauri Sahai
Excerpt:
execution - decree against one set of defendants on contest, against another by consent--appeal against whole decree by contesting defendant--execution, limitation for--limitation act (ix of 1908), schedule i, article 182, clause (2). - .....all of them. the result of the consent decree and of the decree on contest was that there was a decree for possession in favour of the plaintiffs against all the defendants, but against some, the decree was on consent while against others, it was on contest. the decree did not define the precise position of the defendants who had entered into the compromise. it did not specify their share in the property if they were in joint possession; if they were in occupation of demarcated plots, the decree did not define such portions. the result was that the decree, though made by consent as to a portion and on contest as to the remainder, was still a joint decree, in the sense that, if maintained, it entitled the plaintiffs to recover possession of the entire property in dispute from all the.....
Judgment:

1. This appeal is directed against an order in proceedings in execution of a decree for delivery of possession of land made on the 17th September 1903. The question in controversy is, whether an application for execution of this decree, made on the 7th May 1910, is barred by limitation. The Courts below have concurrently held that the application is not barred. We are now invited by the judgment-debtors to hold that this view is erroneous in law. For the determination of the question raised before us, it is necessary to recapitulate the essential: facts, which are all admitted.

2. The plaintiffs sued two sets of persons, who may be called A and B, for recovery of possession of land. A petition of compromise was filed on behalf of some of the defendants. The Court came to the conclusion that the compromise was operative only as regards some of them (A) and gave effect to it to that extent. The suit was heard on the merits as against all the other defendants (B). The result was a two-fold decree, first, for possession as against the consenting defendants (A), without mesne profits or costs; and, secondly, for possession against the contesting defendants (B), who were made liable for costs and mesne profits. B appealed to the District Judge and valued their appeal at the value of the subject-matter of the entire property involved in the suit in the Court of first instance. They did not join A as respondents; the only respondents to the appeal were the successful plaintiffs. The appeal was preferred on the 25th, January 1904. The parties, however, agreed to await the decision of this Court in an analogus litigation, which had been brought up here by way of first appeal. After the disposal of that appeal by this Court, the appeal before the District Judge was taken up, and was dismissed on the 8th May 1907, on the footing of the agreement that the parties would abide by the decision of the High Court in the suit previously mentioned.

3. The present application for execution of the decree of the 17th September 1903 was made on the 7th May 1910. On the 28th August, writ for delivery was issued; and it is alleged that the decree-holders were placed in possession on the 5th September. On the 29th September, however, objection was taken by the judgment-debtors that the decree was incapable of execution as the rights thereunder had been extinguished by the Statute of Limitation. The Courts below have overruled this contention. On the present appeal, the controversy has centred round Clause 2 of the third column of Article 182 of the Schedule to the Indian Limitation Act. That clause provides that an application for execution of a decree of a Civil Court not provided for by Article 183 or Section 43 of the Code of 1908 must be made within three years from the date of the final decree of the Appellate Court or the withdrawal of the appeal, where there has been an appeal, On behalf of the judgment-debtors appellants reliance had been placed up on the cases of Sreenath v. Brojo Nath 13 W.R. 309 : 4 B.L.R. Ap. 99; Wise v. Raj Narain Chuckerbutty 10 B.L.R. 258 : 19 W.R. 30 (F.B.); Hur Proshad v. Enayet Hossain 2 C.L.R. 471; Raghunath Pershad v. Abbul Hye 14 C. 26; Christiana Benshawn v. Benarasi Proshad 22 Ind. Cas. 685 : 19 C.W.N. 287; Sangram Singh v. Bujharat Singh 4 A. 36 : A.W.N. (1881) 128; Mashiat-un-nissa v. Rani 13 A. 1 : A.W.N. (1889) 207 and Badi-un-nissa v. Shams-ud-din 17 A. 103 : A.W.N. (1895) 20. On the basis of these decisions the argument has been founded that as the decree holders could have executed the consent decree obtained by them against A, notwithstanding the pendency of the appeal preferred by B, they could not claim the benefit of Clause (2) of the third column of Article 182. The contention in substance is that in reality there are two completely distinct decrees on the same sheet of paper and the fact that an appeal had been preferred by B against one of these decrees, does not entitle the decree-holders to an extension of time against A in respect of the other decree. It is further pointed out that not only was not an appeal preferred against the consent decree, but under the law an appeal could not have been preferred against that decree. Sir Rash Behary Ghose for the appellants has, however, drawn our attention to the decisions in Mullick Ahmed Zumma v. Mahomed Syed 6 C. 194 : 6 C.L.R. 573; Basant Lal v. Nojmunnissa Bibi 6 A. 14 : A.W.N. (1883) 179; Gungamoyee v. Shib Sunker 3 C.L.R. 430; Nundun Lal v. Rai Joykishen 16 C. 598; Kristo Churn Dass v. Radha Churn Kur 19 C. 750; Nurul Hasan v. Muhammad Hasan 8 A. 573 : A.W.N. (1886) 237; Muthu v. Chellappa 12 M. 479 and Gopal Chunder v. Gosain Das Kalay 25 C. 594 : 2 C.W.N. 556. Some of these cases are possibly distinguishable, but it has not been disputed that from the others a rule is deducible which would negative the contention of the appellants. On behalf of the respondents, reliance has been placed particularly upon the cases of Badi-un-nissa v. Shams-ud-din 17 A. 103 : A.W.N; Gopal Chunder v. Gosain Das 25 C. 594 : 2 C.W.N. 556; Ashfaq Husain v. Gauri Sahai 9 Ind. Cas. 975 : 15 C.W.N. 370 : 8 A.L.J. 332 : 9 M.L.T. 380 : 13 Bom. L.R. 367 : 4 Bur. L.T. 121 : 21 M.L.J. 1140 : 38 I.A. 37 : 33 A. 264 : 13 C.L.J. 351, which, it has been contended, negative the position taken up by the appellants.

4. It is not necessary for our present purpose to determine the true scope and meaning: of the term 'appeal' as used in Clause 2 of the third column of Article 182; upon that matter there has been divergence of judicial opinion. While a narrow view was taken in some of the cases already mentioned, a wider interpretation was placed upon the term in the cases of Abdul Rahiman v. Moidin Saiba 22 B. 500; Shivram v. Sakharam 1 Ind. Cas. 459 : 33 B. 39 : 10 Bom L.R. 939 Viraraghava Ayyangar v. Ponnammal 23 M. 60 : 9 M.L.J. 284 and Kristnama v. Mangammal 26 M.91. In these cases the position was maintained that time ran against the decree-holder from the date of the final decree in the appeal, irrespective of the question whether the appeal did or did not imperil the decree whereof execution was ultimately sought. We do not propose to enter upon an examination of this wide problem for two reasons; first, because, even if the view be maintained that a decree-holder is entitled to the benefit of the extended time contemplated by Clause (2) of Article 182 only when the decree whereof execution is sought, is imperilled by the appeal, the position taken up by the appellants cannot be sustained; and secondly, because the contention of the appellants must fail in view of the decision of the Judicial Committee in Ashfaq Husain v. Gauri Sahai 9 Ind. Cas. 975 : 15 C.W.N. 370 : 8 A.L.J. 332 : 9 M.L.T. 380 : 13 Bom. L.R. 367 : 4 Bur. L.T. 121 : 21 M.L.J. 1140 : 38 I.A. 37 : 33 A. 264 : 13 C.L.J. 351.

5. As regards the first point, it is clear that although a person who is a party to a compromise cannot challenge the validity of the consent decree by way of appeal, it is competent to a party to the suit, who has not joined in the compromise, to appeal against the decree if he has been prejudiced thereby. This has been recognised in suits for partition of joint properties where a decree has been made by consent of some only of the parties to the litigation: Nityamoni Dasi v. Gohul Chandra Sen 9 Ind. Cas. 210 : 13 C.L.J. 16. It is also clear that circumstances may be imagined in suits of other description, for instance, suits for contribution or even suits for possession of joint property where, in the event of a compromise amongst some only of the parties to the litigation, another person, a party to the suit but not a party to the compromise, may challenge the decree by way of appeal on the ground that he has been prejudiced thereby. In the present instance, we have the unquestionable fact that the contesting defendants did prefer an appeal against the entire decree. In that appeal, there was, to use the language of the decision in Ramchandara Gopal v. Antaji Vasudev 5 Bom. L.R. 735 the chance or risk of the Appellate Court modifying the decree of the trial Court. The entire decree was under appeal and was in peril. It is worthy of note that the contesting defendants were in a manner constrained to appeal against the entire decree. The plaintiffs sought a decree for ejectment of the defendants; the relief claimed was a joint decree against all of them. The result of the consent decree and of the decree on contest was that there was a decree for possession in favour of the plaintiffs against all the defendants, but against some, the decree was on consent while against others, it was on contest. The decree did not define the precise position of the defendants who had entered into the compromise. It did not specify their share in the property if they were in joint possession; if they were in occupation of demarcated plots, the decree did not define such portions. The result was that the decree, though made by consent as to a portion and on contest as to the remainder, was still a joint decree, in the sense that, if maintained, it entitled the plaintiffs to recover possession of the entire property in dispute from all the defendants jointly. The contesting defendants appealed against this decree. As the decree did not define their position, they were bound to appeal against the whole decree. It is thus plain that the validity of the entire decree was in controversy in the appeal, and from this point of view, the plaintiffs-decree-holders would undoubtedly be entitled to the benefit of Clause 2 of Article 182: Gopal Chunder v. Gosain Das 25 C. 594 : 2 C.W.N. 556; Badi-un-nissa v. Shams-ud-din 17 Aa. 103 : A.W.N. (1895) 20. Some stress has been laid upon the decision in Christiana Benshawn v. Benarasi Proshad 22 Ind. Cas. 685 : 19 C.W.N. 287, which is clearly distinguishable and is of no assistance to the appellants. In that case, there were two distinct decrees, one in favour of some of the defendants against the plaintiff, the other in favour of the plaintiff against the other defendants. An appeal was preferred against the latter portion of the decree; that appeal did not and could not imperil the other portion of the decree. In these circumstances, the decree-holder was rightly held not entitled to the benefit of Clause (2) of Article 182. Nor is the decision of the Judicial Committee in Batuk Nath v. Munni Dei 23 Ind. Cas. 644 : 36 A. 284 (P.C.) : 19 C.L.J. 574 : 12 A.L.J. 596 16 Bom. L.R. 360 : 27 M.L.J. 1 : 16 M.L.T. 1 L.W. 729 : 18 C.W.N. 740 of any avail to the appellants. In that case, there was no decree of the Court of Appeal, because the appeal preferred to the Judicial Committee never came up for disposal by their Lordships. The appeal was dismissed by the Registrar for non-prosecution, and it was ruled that the order of the Registrar was not a decree of the Court of Appeal.

6. As regards the second point, namely, the effect of the rule deducible from the decision of the Judicial Committee in Ashfaq Husain v. Gauri Sahai 9 Ind. Cas. 975 : 15 C.W.N. 370 : 8 A.L.J. 332 : 9 M.L.T. 380 : 13 Bom. L.R. 367 : 4 Bur. L.T. 121 : 21 M.L.J. 1140 : 38 I.A. 37 : 33 A. 264 : 13 C.L.J. 351, we are of opinion that it is completely destructive of the contention of the appellants. There a joint decree for sale of land was obtained by the plaintiffs against the defendants. The decree was ex parte against one of the defendants and was on contest as against the other. The person against whom the decree had been made ex parte took steps to have the decree vacated in so far as she was concerned. The decree, however, remained untouched as against the other defendants. Ultimately, the suit was re-tried as against the person at whose instance it had been re-opened, and a decree was made against her which was confirmed on appeal. It was ruled that the decree-holders were entitled to the benefit of Clause (2) of Article 182, not only against the defendant at whose instance the case had been re-opened, but also as against the defendants against whom a decree had been made on contest in the first instance. The Judicial Committee pointed out that the plaintiffs were entitled to a joint decree against all the defendants, and that the decree originally made was merely a step for the attainment of that ultimate object, so that time ran as against the decree-holders from the date when the final decree was made. In the case before us, the plaintiffs were entitled to a joint decree against all the defendants. On appeal by the contesting defendants, the entire matter was re-opened. When the appeal was dismissed in the end, the decree of the trial Court stood confirmed; it is clear that the plaintiffs were entitled to wait till the final decree had been made in their favour. If this view were not taken, the plaintiffs might find themselves in a position of considerable embarrassment, as an attempt to execute against the consenting defendants alone a decree which did not define their liability, might lead to obvious complications. In our opinion, the plaintiffs were not bound to execute the decree till the final disposal of the appeal.

7. We hold accordingly that the view taken by the Courts below is correct and that the application for execution is not barred by limitation. We may add that on behalf of the appellants, Babu Joges Chandra Roy candidly admitted that the justice of the case was entirely with the respondents and that it was iniquitous on the part of the appellants, who had consented to a decree against themselves, to urge every conceivable objection against the execution of that decree. In that estimate of the merits of the case, we entirely agree.

8. The result is that the decree of the District Judge is affirmed and this appeal dismissed with costs. We assess the hearing fee at one gold mohur.

9. Similar orders will be drawn up in each of the other appeals which will consequently be dismissed with costs, one gold mohur in each case.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //