SIR GEORGE LOWNDES:
The principal question in this appeal is whether an application for the execution of a decree is time-barred under the provisions of Art. 182 (2), Sch. 1, Lim. Act, 1908. The article allows a period of three years only for such an application from the date of the decree, "or where there has been an appeal, the date of the final decree or order of the appellate Court."It is not disputed that if in the present case the period is to be reckoned from the date of the decree, the application was out of time, nor, per contra, if the respondents can take advantage of a certain order of the appellate Court, that it was within time. The suit out of which the appeal arises was launched as long ago as 1912. Some four years later it came up in appeal to this Board, but was sent back for trial in the Baluchistan Courts, where the proceedings dragged on for another 12 years.
On 17th November 1920, the decree of which execution is sought was passed in favour of the plaintiff, Ganesh Das Vig, by the Assistant Political Agent, Quetta. Against this decree both parties appealed to the Court of the Judicial Commissioner in Baluchistan. Two years or more were wasted in an abortive reference to arbitration, the arbitrator selected by the parties being the son of the judgment-debtor, and now, as his representative, the principal appellant before the Board. On 30th July 1923 the judgment-creditor died. His widow was brought on the record in his appeal but not in that of the judgment-debtor. On 12th May 1924 the widow died and no further substitution was made in either appeal, nor was anything done by the arbitrator. On 6th August 1924 an application was made to the appellate Court by the present respondents, as the representatives of the judgment-creditor, for an order holding that the judgment-debtor's appeal had abated. Notice was served upon the judgment-debtor, and he put in a petition in reply denying that his appeal had abated, and asking for an order that the arbitration should proceed, with an alternative prayer that in case the Court should hold that the appeal had abated, an order should be made setting aside the abatement. Upon these counter-applications both appeals were set down before the Judicial Commissioner who, by an order of 18th October 1924, held that both appeals had abated. He said it would be useless to send the matter back to arbitration, and he refused the application of the Judgment-debtor to set aside the abatement in the case of his appeal.
It is upon this order of 18th October 1924 that the respondents rely to save limitation, and the only question is whether it was a final order of the appellate Court within Art. 182 (2). Both the Courts in India have held that it was. The respondents made their application for execution on 27th October 1926. The present appellants, the representatives of the judgment-debtor, who was then dead, took various objections to the application, and after the lapse of another two years, a considerable portion of which was occupied in a search by the Court officials for the file of the case, the matter came on before the Assistant Political Agent. Objection to his jurisdiction and to the title of the respondents were disposed of in their favour. They have not been urged before the Board. On the question of limitation, the learned Judge held, following a ruling of the Calcutta Court, Gohur Behari v. Ram Krisna Shaha (AIR 1927 Cal 760=104 IC 566), that the period of limitation should be calculated from 18th October 1924, the date of the Judicial Commissioner's order above referred to, and that the application was therefore in time. Having regard, however to the omission of certain particulars from the application for execution, he returned it to the respondents for amendment. The necessary amendments were made and the application was re-submitted, but apparently before it was considered by the Judge, the representatives of the judgment-debtor lodged an appeal to the Judicial Commissioner. The appeal was argued before him at great length, but was dismissed on 11th March 1929, by an order of that date. The learned Judicial Commissioner, though noting that there had been some conflict in the Indian Courts as to what should be considered a final order of an appellate Court, agreed with the conclusion to which the Assistant Political Agent had come on the question of limitation. The appellants, with the no doubt laudable ambition of completing the tale of 20 years for the duration of this suit, have appealed to His Majesty in Council against the Judicial Commissioner's decision. Their Lordships, for the reason to be stated, have no doubt that their appeal must fail, but the execution proceedings will still have to be worked out in the Political Agent's Court, and there may still be opportunities to them to delay the satisfaction of what has been so laboriously decided to be a just debt.
In the argument before their Lordships the appellants have relied mainly on two decisions of this Board, Batuk Nath v. Munni Dei (AIR 1914 PC 65=23 IC 644=41 IA 104=36 All 284 (PC))and Abul Majid v. Jawahir Lal (AIR 1914 PC 66=23 IC 649=36 All 350 (PC)). Neither of these cases is, in their Lordships' opinion, decisive of the present question. In the first, an appeal to His Majesty in Council had been dismissed for want of prosecution under R. 5 of the Order in Council of 13th June 1853. The question before the Board in the reported case was whether under Art. 179, Sch. 2, Lim. Act of 1877, which corresponds with Art. 182, of the Act (1908), the assignee of the original decree-holder could claim three years from the date of the dismissal in this Board. It was held that he could not, the reason assigned being that there was no order. Sir John Edge, in delivering the judgment of the Board, says :
"There was however no order of His Majesty in Council dismissing the appeal, nor was it necessary that any such order should be made in the appeal. Under R. 5 of the order in Council of 13th June 1853, the appellant or his agent not having taken effectual steps for the prosecution of the appeal, the appeal stood dismissed without further order."
In the second case the question was again as to the effect of the dismissal of an appeal in this Board for want of prosecution. No reference was made to Batak Nath's case (2), which had been decided less than a month before, and it does not appear whether the dismissal had been under the order in Council, but the effect of the decision was the same. Lord Moulton in delivering the judgment of the Board says:
"The chief matter of argument before this Board was a contention that the decree which it is sought to enforce had been constructively turned into a decree of His Majesty in Council and assigned to the date of 13th May 1901, by virtue of the dismissal of the appeal for want of prosecution on that date, and that therefore the period of limitation was 12 years from 13th May 1901, by virtue of Art. 180 Lim Act (1872). [Under Art. 180, 12 years was allowed for the execution of an order of His Majesty in Council.] Their Lordships see no foundation for this contention which appears to have been the basis of the decision of the Courts below. The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit, and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognized authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and that therefore he was in the same position as if he had not appealed at all."
In the case now before their Lordships it is manifest that there was an order of the appellate Court, and that it did deal judicially with the matters before it. The Judicial Commissioner considered the judgment-debtor's contention that his appeal had not abated, and held that it had. He considered the prayer for revival of the arbitration and refused it. He rejected the application to set aside the abatement. Whether the order made was right or wrong is immaterial: there was no appeal against it, and it was in the circumstances clearly final. Their Lordships think that when an order is judicially made by an appellate Court, which has the effect of finally disposing of an appeal, such an order gives a new starting point for the period of limitation prescribed by Art. 182 (2) of the Act of 1908. They recognize that there has been some difference of opinion upon this question in Indian Courts, but they think that the principle enunciated above is in accordance with the view taken in the majority of cases and is the effect of the decision reported in Gohur Bipari v. Ram Krishnu (AIR 1927 Cal 760=104 IC 566)on which both Courts have relied in the present proceedings.
The only other question which has been argued in the appeal is as to the omissions on the application for execution which led to its return to the respondents in the lower Court for amendment. It is contended for the appellants that no amendment should have been allowed, and that the application should have been rejected. Under O. 21, R. 17, Civil P. C., the executing Court clearly had a discretion to allow the amendments, and the appellate Court thought that the discretion had been properly exercised. In these circumstances it is idle to ask this Board to interfere. In their Lordships opinion this appeal fails and should be dismissed with costs. They will humbly advise His Majesty accordingly.