NARMADABAI NARAYANSHET SHET Vs. HIDAYATALLI SAHEBALLI

JUDGEMENT

(1.) THIS appeal has been preferred by the surety against the order passed by the learned District Judge holding that the darkhast filed against the surety is in time and directing the Court of first instance to proceed with the said darkhast and to dispose of it on the merits in accordance with law.

(2.) IN civil suit No.475 of 1936 a decree was passed directing defendants Nos. 2 and 3 to pay the plaintiff Rs. 307-8-6 and proportionate costs. Pending the suit certain moveables belonging to defendant No.3 were attached at the instance of the plaintiff. Thereupon the said defendant applied to raise the attachment (Miscellaneous Application No.80 of 1936), and the application was allowed on the defendant furnishing security in that behalf. The present appellant stood surety for the said defendant to the extent of Rs. 400. As a result the moveables of defendant No.3 which had been attached were returned to him. On the date of the hearing of the suit all the defendants remained absent and an ex parte decree was passed in favour of the plaintiff on November 18, 1938. Thereafter defendant No, 3, Mobarilal, filed Miscellaneous Application No.157 of 1938 on December 29, 1938, for setting aside the ex parte decree and restoring the suit to file. But his application was dismissed on June 19, 1939. Moharilal preferred an appeal against the said order, No.35 of 1939. But even the said appeal failed and was dismissed on August 23, 1939. The decree-holder has filed the present darkhast application No.1171 of 1942 seeking to execute the decree against the surety. When notice was issued to the surety under Order XXI, Rule 22, he filed his written statement in which the main contention urged by him against the decree-holder's claim was that the darkhast is barred by limitation. He" has also contended that he had stood surety not for the purpose of the suit, but for the purpose of miscellaneous application No.80 of 1936, and that the darkhast in which the ex parte decree is sought to be executed cannot be enforced against him. The learned Civil Judge, Junior Division, Yawal, rejected the surety's contention that he had stood surety in application No.80 of 1936 and was not liable for the decree which was passed in the suit. He, however, held that the darkhast filed by the decree-holder was barred by limitation since it had been filed more than three years after the date of the decree. Accordingly, the decree-holder's darkhast was dismissed with costs. The appeal preferred by the decree-holder in the District Court of East Khandesh, however, succeeded, the learned District Judge having held that the present darkhast was in time. Accordingly, the learned District Judge has sent back the proceedings to the Court of first instance for disposal according to law. It is against this order that the surety has preferred the present second appeal.

(3.) IN Nagendra's case, on June 24, 1920, the Subordinate Judge had delivered his judgment disallowing the claim of one of the parties before him, viz. Madan Mohan, and a final decree was passed for sale of the mortgaged properties that had come to the share of the remaining six judgment-debtors. On August 27, 1920, Madan Mohan presented an application to the High Court purporting to be an appeal from the "order" of the Subordinate Judge of June 24, 1920, and he alleged that no decree had been drawn up. The point raised by him in his appeal was confined to the decision against him in respect of the assignment, and he joined as parties to the appeal only the other decree-holders and not the judgment-debtors. IN fact a decree had been drawn up and the statement made by the appellant Madan Mohan that he was making an appeal against an "order" on the ground that no decree had been drawn up by the Subordinate Judge was obviously false. At the hearing of the appeal objection was taken to the form of the appeal and the appellant's request for amendment was refused, with the result that the appeal was dismissed both on the ground of irregularity and upon the merits. This dismissal was embodied in a decree of the High Court on August 24, 1922. On October 3, 1928, the decree-holders presented an application to the Subordinate Judge for execution of the decree by sale of the mortgaged properties. The decree holders' claim was resisted by some of the judgment-debtors on the ground that it was barred by article 182. On their behalf it was contended that the appeal preferred by Madan Mohan was irregular in form and that to the said appeal they had not been impleaded. It was, therefore, contended that the period of limitation for the purpose of execution of the decree must be deemed to have commenced in 1920 when the Subordinate Judge passed a final decree, and not from the decree passed by the High Court in Madan Mohan's appeal. This plea had not been accepted by the learned Judge in execution proceedings. But the judgment-debtors preferred an appeal to the High Court and the High Court allowed their appeal on the ground that since Madan Mohan's appeal did not imperil the whole decree in question, the terminus a quo was the date of the Subordinate Judge's decree and that the application was consequently barred by article 182 of the Limitation Act. The same contention was urged before the Privy Council in three forms. It was contended that Madan Mohan's appeal was merely an abortive attempt to appeal and not an appeal all, that the appeal in order to save limitation under Clause 2 of Article 182 must be one to which the persons affected were parties and that it must also be one in which the whole decree was imperilled. All these contentions were negatived by the Privy Council and it was held by them that the decree-holder's application for execution was in time on the ground that the appeal preferred by Madan Mohan was an appeal falling under Clause 2 in column 3 of Article 182. As such, limitation under the said article would start only from the date of the final decree of the appellate Court in the said appeal. Their Lordships referred to the fact that there is no definition of "appeal" in the Code of Civil Procedure and observed (p. 287): 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. Several decisions of the INdian High Courts were cited before the Privy Council, but their Lordships did not think it necessary to discuss "these varying authorities in detail. " They took the view that the question must be decided upon the plain words of the article : "where there has been an appeal," time is to run from the date of the decree of the appellate Court. It was held (p. 288): There isno warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But their Lordships took the view that "in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is. . . the only safeguide. " It was further observed (p. 288): It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court. But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain. . . . It is quite true that the decision in Jivaji's case was not cited before the Privy Council and in terms has not been overruled by them. Besides, the point which arose before the Privy Council was somewhat different in the sense that the appeal in question in the said case had not been filed against an order dismissing the defendant's application to set aside an ex parte decree. But their Lordships examined the denotation of the word "appeal" in the context and have definitely held that the said word must include any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, and they have also held that "so long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution. " IN view of this clear statement of the position it is, I think, difficult to hold that the view taken by this Court in Jivaji's case can be regarded as authoritative any longer. It is obvious that if the appeal preferred by the debtor in the present case had succeeded, the ex parte decree passed by the trial Court would have been set aside and the suit would have been restored to file and remanded for trial on the merits. INdeed, the Privy Council did not think it necessary to consider the several decisions of the INdian High Courts and they based their decision upon what was regarded by them to be the effect of the plain words of the article. That being so, it seems to me that Courts in INdia are bound by the view thus expressed by the Privy Council, though the facts on which the point arose for decision in that particular case were not indentical with those in the present case. It is well-settled that even the obiter of the Privy Council are binding upon the INdian Courts and must be respected : vide Shrinivas Sarjerav v. Balwant Venkatesh (1913) I. L. R. 37 Bom. 513 521 : S. C. 15 Bom. L. R. 533, Nagappa Balappa v. Bamchandra (1945) 48 Bom. L. R. 225, Rama Appa v. Tippaya Appaya (1943) 45 Bom. L. R. 186, 190, Shri Nath Sah v. Official Liquidator, Benares Bank [1941] All. 153 158 F. B. , Jogendra Narayan Dhar v. Asltar Ulla [1937] 1 Cal. 455. That being so, I think it must be held that the decision in Jivaji's case can no longer be regarded as good law.