GURAPADAPPA SIDRAMAPPA JAMMA Vs. VIDYACHANDRA RAOJI MEHATA

JUDGEMENT

(1.) THIS is an appeal filed by the original defendant No. 2, who was the judgment -debtor, and by the surety, against an order passed by the Civil Judge, Senior Division, Sholapur directing the darkhast filed by the decree -holder to proceed. The facts giving rise to this appeal are that some time in the year 1951, a decree was passed in favour of respondent No. 1 for possession and for mesne profits, and appellant No. 2 stood surety in regard to the decree for possession when the stay of execution was granted. In execution of that decree possession was taken by the decree -holder on June 15, 1968. On September 22, 1959 a final decree for mesne profits was passed against the original defendants Nos. 1, 2 and 3, as well as original defendant No. 5. As against original defendants Nos. 1, 2 and 3, the decree for mesne profits was for the specific sum of Rs, 1,657.12 in respect of the period for which they were in possession viz., from September 14, 1949 to March 16, 1951, and for interest. As against original defendant No, 5, the decree for mesne profits was for the sum of Rs. 10,177.91 for the period from March 16, 1951 to June 15, 1958 for which he had been in possession, and for interest. Against that decree, defendant No. 5 alone filed an appeal, being First Appeal No. 849 of 1959. On September 10, 1960, Special Darkhast No. 77 of 1960 was filed by the decree -holder against defendant No. 5, which was executed on December 22, I960 even before defendant No. 5's First Appeal No. 849 of 1959 was dismissed on March 9, 1966. On September 24, 1962 Special Darkhast No. 69 of 1962 was filed by the decree -holder against the present appellant No. 1 (original defendant No. 2) and the surety, but the same was not prosecuted and was dismissed on October 25, 1963, the question of limitation being kept open. On October 14,1966, Special Darkhast No. 52 of 1966 was filed by the decree -holder against both the present appellants viz., the original defendant No. 2 and the surety. The appellants contended that the darkhast was barred by limitation, but the learned trial Judge, after considering the authorities cited before him came to the conclusion that the darkhast was not barred by limitation and, on August 7, 1967, he passed an order that the darkhast should proceed. It is from that order that the present appeal has been preferred by the appellants.

(2.) IT is common ground that the present case is governed by the Indian Limitation Act, 1908, and ii cannot be disputed that the final decree for mesne profits being a decree passed on September 22, 1959, execution would be barred by limitation, unless the decree -holder is entitled to avail himself of the provisions of el. (2) of Article 182 of the Limitation Act, so that the starting point of limitation would be, not the date of the decree for mesne profits, but the date of the dismissal of defendant No. 5's appeal, being First Appeal No. 849 of 1959, which was March 9, 1966.

(3.) THE appeal was irregular in form and insufficiently stamped and was dismissed, both on the grounds of irregularity as well upon the merits, by the High Court on August 24, 1922. On October 8, 1923, the appellants presented an application to the Subordinate Judge for execution by sale of the mortgage properties which was opposed by some of the judgment -debtors on the ground that it was barred by Article 182 of the Limitation Act. In the judgment of the Privy Council, Sir Dinshah Mulla observed that if three years were to be calculated, as the respondents contended, from the date of the decree of the Subordinate Judge viz., June 24, 1920, the application was manifestly out of time; but that it was within time if the 'critical date' was that of dismissal of Madan Mohan's appeal by the High Court viz., August 24, 1922, and the decision of that question depended on whether Madan Mohan's appeal which was dismissed on the latter date was an appeal within the meaning of the second clause in the third column of Article 182. The High Court dismissed the appellants' application as time -barred. That order of dismissal was sought to be supported before the Privy Council, inter alia, on the ground that an appeal, in order to save limitation under el. (2) of Article 182, must be one to which the persons affected i. e., in the said case the judgment -debtors, were parties, and also on the ground that it must be an appeal in which the whole decree was imperilled. In allowing the appeal, and holding that el. (2) of Article 182 applied, the Privy Council laid down (at pp. 1070 -1071) that the question before them had to be decided on the plain words of the Article; that there was no warrant for reading into the words 'where there has been an appeal' any qualification either 'as to the character of the appeal or as to the parties to it', that the words mean just what they say; and that equitable consideration or theoretical justification were out of place and the strict grammatical moaning of the words was the only safe guide. The Privy Council took the view that there having been, in the case before them, an appeal from the mortgage decree of June 24, 1920, time only ran against the appellants from August 24, 1922, the date of the appellate Court's decree and held that the order passed by the Subordinate Judge was right. Nagendra Nath's case has been regarded as the leading case on the point which I am now considering and, in my opinion, it has been laid down in that case by the Privy Council, in unambiguous terms that, once there was an appeal from decree, time would run from the date of the appellate Court's decree regardless of the character of the appeal or the parties to it. Nagendra Nath's case has been referred to and/or followed in numerous subsequent decisions e. g. in the cases of of Nagappa v. Gurushantappa (1932) 35 Bom. L.R. 432, Narayan v. Radhabai (1935) 38 Bom. L.R. 215; Mahadeo Bhimashankar v. Fatumiya (1947) 50 Bom. L.R. 221, Narmadabai Narayanshet v. Hidayatalli (1946) 50 Bom. L.R. 696, Sardarsing v. Rakaran (1958) 61 Bom. L.R. 984, and Suratsing v. Gulabchand (1962) 65 Bom. L.R. 436, but it is not necessary for me to deal with each of those cases. A question of the interpretation of el. (2) of Article 182 of the Indian Limitation Act, 1908, also arose before the Privy Council in the case of Abdulla Asghar Ali v. Ganesh Das Vig (1932) 35 Bom. L.R. 337, but no question of parties to the appeal arose in that case, as in the present one, and the proposition which was laid down in that case was (at p. 340) that when an order was judicially made by the appellate Court holding that an appeal had abated and refusing to set aside the abatement, which had the effect of finally disposing of the appeal, such an order gives a new starting -point for the period of limitation under Clause (2) of Article 182. It may be mentioned that Nagendra Nath's case was not cited or referred to in the judgment of the Privy Council in Abdulla Asghar Alt's case. The learned advocate for the appellant has, however, contended before me that the decision in Nagendra Nath's case is no longer good law in view of the decision of the Supreme Court in the case of Bhawanipore Banking Corporation, Ltd. v. Gouri Shankar Sharma : [1950]1SCR25 . The facts of that case were simple. On August 21, 1940, a preliminary mortgage decree was passed, ex parte, in a suit instituted by the appellant before the Supreme Court to enforce the mortgage. On September 19, 1940, the judgment -debtor made an application under Order IX, Rule 13 of the Civil Procedure Code for setting aside that etc parte decree, but his application was rejected on June 7, 1941. On June 11, 1941, the judgment -debtor filed an application under Section 36 of the Bengal Money Lenders' Act and for reopening the preliminary decree, but that application was dismissed for default of appearance on December 20, 1941. Thereafter, a final mortgage decree was passed in favour of the appellant on December 22, 1941. The judgment -debtor then made an application under Order IX, Rule 9 of the Civil Procedure Code for restoration of the proceedings under Section 86 of the Money Lenders' Act, which application was, however, dismissed on June 1, 1942, both on the ground that no sufficient cause for non -appearance had been made out, and on. the ground that no purpose would serve by reopening the preliminary decree after the final decree had already been passed. The judgment -debtor preferred an appeal to the High Court from the order dismissing his application under Order IX, Rule 9, but that appeal was dismissed for non -prosecution on July 8, 1944. On April 9, 1945 the applicant filed an application for executing the decree against the original judgment -debtor who, by that time, was already dead and that application was dismissed for default on May 11,1945. On June 2, 1945 another application for execution was filed, and the question which arose before the Supreme Court was whether the same was barred by limitation. It was observed in the judgment of the Supreme Court in the said case that it was quite clear that it was barred, since it had been filed more than three years after the final decree, unless the case fell within Clause (2) or (3) of Article 18'A In regard to Clause (2) with which we are concerned, the Supreme Court rejected the argument that, even though no appeal was preferred from the final mortgage decree, the words 'where there has been an appeal' in Clause {2) of Article 182 were comprehensive enough to include the appeal from the order dismissing the application under Order IX, Rule 9 made in connection with the proceedings under the Money Lenders' Act, as a highly far -fetched argument. The Supreme Court took the view (at p. 29) that the words 'where there has been an appeal' in the said Clause (2) must be read with the words in column 1 of Article 182 viz., 'for the execution of a decree or order of any civil Court' and, however broadly Clause (2) was construed, it could not be held to cover an appeal which arose from an order passed in a collateral proceeding which had no direct or immediate connection with the decree under executon. It is the contention of the learned advocate for the appellants before me that the decision of the Supreme Court in Bhawanipore Corp's case is in conflict with the decision of the Privy Council in Nagendra Nath's case, but I am unable to accept that argument, and indeed, the reason why Nagendra Nath's case has not been referred to by the Supreme Court at all in its judgment in the said case is that there is no conflict between the two. Whereas Nagendra Nath's case lays down that the character of the appeal, or the parties to it, should not be taken into consideration for the purpose of invoking Clause (2) of Article 182 so long as there has been an appeal from the decree of the trial Court, Bhawanipore Corp's case only lays down that Clause (2) of Article 182 is not attracted where the appeal in question is not from the decree which is sought to be executed, but from an order which is passed in a collateral proceeding which had no direct or immediate connection with the decree under execution. The two propositions are, in my opinion, different and capable of standing side by side, without conflicting in any manner whatsoever.