ABDULKADIR Vs. ABDULKADIR

JUDGEMENT

(1.) THE question for decision in this second appeal is whether execution of the decree is barred by limitation or not. THE decree was one for money and was passed by the trial court on 11-11-111

(2.) AN appeal filed against the trial court's decree was disposed of by the District Court on 19-6-1120 ; and against the appellate decree the third defendant filed a civil revision petition in the High Court as C. R. P. 877 of 1121. The High Court admitted the revision petition and ordered notice thereon to the decree-holder. But on 19-1-1123 it disposed of the revision petition holding that the petition was incompetent as the third defendant had the right to file a second appeal and allowing three weeks' time to him to pay the necessary court-fee and get the revision petition converted into a second appeal. In the order of 19-1-1123 it was also said that if the third defendant failed to pay the necessary court fee and get the revision petition converted into a second appeal on or before 9-2-1123 the revision petition would stand dismissed with costs. The third defendant did not, however, pay the court-fee and get the revision petition converted into a second appeal in pursuance of the order of 19-1-1123 ; and so the present position is that the revision petition, C. R. P. No. 877 of 1121, has been disposed of on 19-1-1123 on the ground that it was incompetent and no revision lay. Subsequently, on 22-3-1124 , the decree-holder applied for execution of the decree. The third defendant objected to the application for execution on the ground that execution was barred by limitation. His contention was that, as the application was made beyond three years from the date of the appellate decree which was passed on 19-6-1120, it was barred by limitation under clause (2) of article 166 of the Travancore Limitation Act, VI of 1100, corresponding to clause (2) of Article 182 of the Indian Limitation Act. The decree-holder contended that under clause (2) of Article 182 of the Indian Limitation Act the starting point of limitation was the date of the disposal of the civil revision petition, viz. , 19-1-1123, and that the execution application made on 28-3-1124 was, therefore, not barred by limitation as it was within three years from the date of the disposal of the revision petition. The first court over-ruled the defendant's objections and held that the execution application was barred by limitation. On appeal, the District Judge of Alleppey held that the starting point of limitation under clause (2) of Article 166 of the Travancore limitation Act was the date of the appellate decree and could not be the date of the order of the High Court disposing of the revision petition and that the execution petition of 28-3-1124 was therefore barred by limitation as it was beyond three years from the date of the appellate decree. The decree-holder has hence filed this second appeal. 2. The relevant portion of article 182 of the Indian limitation Act which corresponds to Article 166 of the Travancore Limitation act, VI of 1100, and Article 153 of the Travancore Limitation Regulation, II of 1062, reads as follows: "182. For the execution of a decree Three years x x x or order of any civil court non-2. (Where there has provided for by Article 183 or by been an appeal) the S. 48 of Code of civil Procedure, date of the final 1908 (V) of 1908 ). decree or order of the withdrawal of the appeal. x x x There is high authority for holding that the words 'appeal' and 'appellate court' in clause (2) of Article 182 include also 'revision' and 'revisional court'. In Nagendra Nath v. Suresh A. I. R. 1932 Privy council 165, it was observed by Their Lordships of the Privy Council: "there is no definition of appeal in the Civil procedure Code, but their Lordships have no doubt that any application by a party to an appellate court, asking it to set aside or revise a decision of a subordinate court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent. " In an earlier case, Subramania Pillai v. Seethai Ammal, i. L. R. XXXVI Madras 135, the Madras High Court had held that an order of the high Court passed in the exercise of its revisional powers is not an order on an 'appeal' within the meaning of article 182, sub-clause (2), so as to create a fresh starting point for the calculation of limitation. The learned judges who decided that case said therein: "if a High Court interferes on revision either there is a decree passed by the High Court which may be executed under the first sub-clause of Article 182 or the case is sent down with a direction to the lower court to amend its decree. The latter appears to be the regular course and in such event there is no room to employ any Sub-clause other than sub-clause [1] or the new Sub-clause [4]. Where a revision petition is simply dismissed, as was the case here, with the revision petition presented under section 25 of the Provincial Small Cause Courts Act, no fresh starting point of limitation arises. " As the authority of this decision and the observations made therein were dwindled by the observations in the Privy Council case referred to above, another Division Bench of the Madras High Court referred the question to a Full Bench. The Full Bench case, Chidambara v. Rama, is reported in A. I. R. 1937 Madras 385. The earlier Madras case, Subramania pillai v. Seethai Ammal, I. L. R. XXXVI Madras 135, has been followed by the travancore High Court, in IX T. L. J. 278. That case was decided by a single judge of the Travancore High Court, and that learned judge mainly relied therein on Subramania Pillai v. Seethai Ammal, I. L. R. . XXXVI Madras 135, and the reasoning adopted therein. All the grounds relied on in the XXXVI Madras 135 case are set out in the order of reference in Chidambara v. Rama; and they are considered and met in the opinion delivered by the Full Bench. After referring to the observations of the Privy Council in Nagendra Nath V. Suresh a. I. R. 1932 Privy Council 165, and stating that it was reasonably plain from the Code of Civil. Procedure that a distinction was drawn by the Code between a revision petition and an appeal, the learned judges who referred the case to the Full Bench stated in the order of reference in Chidambara v. Rama (A. I. R. 1937 Madras 385): "it is further in our opinion a matter to be borne in mind that the clauses in the Limitation Act relating to applications do not apply to revisions according to the wording of Art. 182; see 51 Mad. 672. One is faced with the further difficulty: If a revision petition is not an appeal for purposes of Art. 182 [2] the following position arises: The period of limitation is entirely different accordingly as the revision petition succeeds or fails. If it succeeds the result would be that there would be a review of judgment or the decree would be amended and where that is the case art. 182 [3] or [4] would presumably apply. If it fails we think there is a casus omissus because the revision petition could not be construed as an application within the meaning of Art. 182, and Cls. 3 and 4 will not apply. Cl. 2 will not apply because it is not an appeal. This seems to be a very unfortunate State of affairs which would leave the party affected in complete uncertainty until the revision petition is disposed of. In these circumstances as the matter is one of some general importance and as 36 Mad. 135 has decided a case absolutely on all fours with the present case and as the Bench is one for which we have the greatest respect, we think it would be better to have this matter set at rest by a Full Bench rather than have conflicting decisions. The question referred is: "whether Art, 182 [2], Limitation Act, applies to civil revision petitions as well or only to appeals in the narrower sense of that term as need in the Civil Procedure Code. " In the opinion delivered by the Full Bench it was said: "true, much importance cannot be attached to the word 'revise' in this passage, as their Lordships were not adverting to what is technically known as a revision petition; but the view that there is no essential difference between a remedy by way of appeal and by way of revision, is considerably reinforced by the passage in question and its value becomes all the greater when we bear in mind that their Lordships made these observations in construing the very provision with which we are now concerned. The only serious objection urged against the view is that in one and the same Act the same word ought not to be construed in two different senses and that as the word'appeal' has a narrower meaning in Arts, 150 to 157, it would be wrong to give it an extended sense in Art. 182. But as a canon of construction, though ordinarily the same meaning should be given to the same words occurring in different parts of the same Act, it is recognised that it sufficient reasons exist, a word can be construed in one part of an Act in a different sense from that it bears in another part: Craies's Statute Law, Edn. 4, p. 153. We think we have shown that cogent reasons exist in the present cafe and what is more, the word 'appeal' within the ordinary acceptation of that term bears not the narrower but the extended meaning. Our answer to the question referred is therefore in the affirmative. " Thus, Subramania Pillai v. Seethai Ammal, 36 Madras 135, has been expressly over-ruled by the Full Bench of the Madras High Court; and all the arguments that found favour with the learned judge who decided the case in 9 T. L, J. 278 have been noticed and dealt with in the opinion delivered by the Full Bench in Chidambara v. Rama (A. I. R. 1937 Madras 385 ). In the light of the decisions in Nagendra Nath v. Suresh (A. I. R. 1932 Privy Council 165) and chidambra v. Rama (A. I. R. 1937 Mad. 385) and the observations in those cases the view taken in 9 T. L. J. 278 does not commend itself to me. I hold that the words 'appeal' and 'appellate court' in Clause (2) of Article 166 of the travancore Limitation Act, VI of 1100, corresponding to Clause (2) of Article 182 of the Indian Limitation Act, would include also 'revision' and 'revisional court' and that, where there has been a revision against a decree, there would be a fresh starting point of limitation under the above Clause of the limitation Act from the date of the order finally disposingof the revision petition.

(3.) IN the result, I hold that the execution of the decree in this case is not barred by limitation, and allow this second appeal with costs through out. The order of the District Judge is reversed and that of the first court is restored. Allowed.