HARI HAR PRASAD SINGH Vs. BENI CHAND

JUDGEMENT

(1.) The question, which has been referred to the Full Bench, is as follows:

(2.) The facts relevant to the question under consideration are these : On 19-3-1937, Shri Hari Har Prasad Singh, the decree-holder-appellant, obtained a money decree for Rs. 9,440 together with costs and future interest against Seth Beni Chand, who is the respondent in this appeal, from the Court of the Civil Judge of Banda. The judgment-debtor presented to this Court a memorandum of appeal against the said decree. The memorandum of appeal was insufficiently stamped, a court-fee of Rs. 10 only was paid, although a much larger amount of court-fee was payable. The deficiency in court-fee was not made good in spite of time having been repeatedly allowed for that purpose. The memorandum of appeal was eventually "rejected" by a learned Judge of this Court on 2-3-1938. The first application for execution of the decree was made on 8-7-1940 more than three years after the date of the decree but within three years from the date of the order rejecting the memorandum of appeal. The decree was sought to be executed by arrest of the judgment-debtor. The judgment-debtor sought relief as an agriculturist; but his prayer was rejected, he being unable to show that he was an agriculturist. The decree-holder was then asked to deposit necessary costs for the arrest of the judgment-debtor; but he failed to do so. Consequently, the application for execution was struck off on 19-9-1940. The decree was put in execution, for the second time, on 12-2-1943. On this occasion, the judgment-debtor raised an objection that the application for execution was not maintainable in so far as the first application, dated 8-7-1940, was barred by limitation, not having been filed within three years from the date of the decree, i. e., 19-3-1937, under Article 182, Limitation Act (IX [9] of 1908). In reply the decree-holder contended that, as there had been an appeal, the first application was well within time from the order of this Court, dated 2-3-1938, rejecting that appeal, in view of the provisions of Article 182 (2) of the Act. This contention was met by the plea that there was no "appeal" or

(3.) Article 182, Limitation Act, prescribed for the execution of a decree, like the one in the present case, a period of three years 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, or the withdrawal of the appeal. Therefore the point, relevant to the question under consideration, is whether "there has been an appeal" against the decree sought to be executed.