ABDUL KANI Vs. NANOO

JUDGEMENT

(1.) This is an appeal by the plaintiff judgment debtor against the order allowing execution against him for costs allowed to the defendant. The contention is one of limitation.

(2.) The decree in the case is dated 15-11-1953; and the execution petition by the defendant decree holder is dated 5-8-1957. In order to save limitation the defendant relied on an appeal from the decree filed by the plaintiff which had been registered but been subsequently dismissed on 11-7-1955 for non payment of deficit court fee. Both the courts below concurred in holding that, as there was an appeal from the decree and the order thereon was within three years prior to the date of the execution application, the application is saved from bar by Art.182(2) of the Limitation Act.

(3.) Counsel for the appellant contends that under S.32 of the Travancore Cochin Court Fees Act, II of 1125, no document which does not bear the prescribed court fee could be of any validity and therefore the appeal which was insufficiently stamped could not be recognised to save the limitation. The Privy Council had occasion to consider the identical question in Nagendra Nath Dev v. Suresh Chandra Dey ( AIR 1932 PC 165 ) where their Lordships held: