ABID HUSAIN KHAN Vs. BASHIR MOHAMMAD

JUDGEMENT

(1.) This is a second appeal arising out of proceedings for execution of a decree. The decree in question was passed in a suit which was instituted in the year 1935, and was actually passed on 17th February, 1936. There was an appeal against the decree which Was decided on 17th November, 1941, confirming the decree. These were preliminary decrees. On 1st September, 1945, a direction was made for preparation of a final decree and the final decree was actually prepared and signed on 15th September, 1945. Thereafter the judgment debtor-appellant applied on the 18th of December, 1945, for amendment of the decree on the ground that the decree had not been framed in accordance with the judgment. On the 8th of April, 1946, this application for amendment was partly allowed. The Court held that, in framing the decree, there had been one of the errors pointed out in the application and to that extent the Court directed the amendment of the decree. Another alleged error pointed out in the application was held by the Court not to exist and the amendment sought on that basis1 was rejected. On the 12th of April, 1946 as a consequence of the order passed, the partial amendment allowed was incorporated in the preliminary as well as the final decrees. On the 12th of November, 1946, the judgment-debtor-appellant moved an application in revision against that part of the order of the 8th of April, 1946, by which a part of the amendment in the decree sought by him had been refused. This revision was dismissed or the 6th of February, 1950, by this Court.

(2.) While these proceedings were going on in the suit or in connection with the decree, there were also proceedings for execution of the decree. The first application in connection with the execution proceeding's was made on the 1st of April, 1947, by which the decree-holder prayed for a certificate transferring the decree to another Court On the 21st of March, 1947, (sic) (May?) the Court issued a certificate for transfer of the decree. However, in pursuance of that certificate, no execution application was actually presented in the transferee Court. Subsequently, the second execution application was moved on the 8th of January, 1952, which was dismissed in default on the 3rd of July, 1952. Then the third execution application was presented on the 28th of September, 1953, and it was again dismissed in default on the 6th of July, 1954. The last and the fourth execution application was moved on the 16th of July, 1954, and it is out of this execution that the present proceedings have arisen. On the 6th of November, 1954, the judgment-debtor filed an objection under Section 47 of C. P. C. pleading that the execution of the decree was barred by limitation. The point urged was that the second application for execution dated the 8th January, 1952, was itself barred by limitation and, consequently that application as well as all subsequent applications for execution were also barred by limitation and not maintainable. This point was urged on the basis that the first execution application was moved on the 1st of March, 1047, and that in that connection the last step taken in aid of the execution was to obtain a certificate on the 21st of March, 1947. The next execution, application should therefore have been moved within three years from the 21st of March, 1947, under Article 182 of the Limitation Act. The second execution application having been moved on the 8th of January, 1952, was thus time-barred. On behalf of the decree-holders, limitation was sought to be saved on, the basis of the proceedings which were going on in connection with the amendment of the decree. It was firstly urged that, under Clause (4) of col. 3 of Article 182 of the Limitation Act the period of limitation would start running from the 8th of April, 1946, on which date the amendment of the decree was actually granted. So far as this plea is concern-ed learned counsel for the judgment-debtor-appellant has not contested its correctness. The further plea on behalf of the decree-holders was that a revision was filed by the judgment-debtor-appellant on the 12th of November, 1946, against the order dated 8th of April, 1.946 and it was decided by this Court on the 6th of February, 1950, and a fresh period of limitation started running with effect from the 6th of February, 1950, under Clause (2) of col. 3 of Article 182 of the Limitation, Act. This point raised on behalf of the decree-holders is contested by the judgment-debtor on the ground that that Clause (2) is not applicable as a decision in the revision against the refusal to amend the decree cannot be deemed to be an 'appeal' within the meaning of that word as contemplated in that clause.

(3.) The scope of the word 'appeal' as used in Clause (2) of col. 3 of Article 182 of the Limitation Act has come up for decision before various Courts in various cases. The leading case used to be a decision of the Privy Council--Nagendra Nath v. Suresh Chandra, AIR 1913 PC 165. It is however not very necessary to consider the effect of that decision as subsequently there have been numerous, decisions of various High Courts' and one decision of the Supreme Court which are of greater assistance. The Supreme Court decision which is to be taken into account is Bhawanipore Banking Cor-poration Ltd. v. Gouri Shanker Sharma, AIR 1950 SC 6. In this case the scope of the word 'appeal' was' explained by their Lordships of the Supreme Court in the following words: