LAXMICHAND JAGANNATH PANDEY Vs. CHALLU RAISA

JUDGEMENT

(1.) THIS miscellaneous second appeal arises out of a reference and it raises a question as to the construction of the word "appeal" in Clause (2) of Article 182 of the Indian Limitation Act, 1908. The question posed is as under: "whether the word "appeal" as used in Clause (2) of the Article means an appeal from the decree which is sought to be executed or could it include even an appeal from an order made in miscellaneous proceedings under Order 9, Rule 13 refusing to set aside the ex parte decree?"

(2.) ACCORDING to the rules of this Court, such miscellaneous second appeals are ordinarily heard by a single Bench and was accordingly laid before the learned single Judge (Hon'ble Raina, J. ). The learned single judge was, however, of the opinion that since some High Courts have taken the view that the word "appeal" in Clause (2) of Article 182 does include an appeal from an order refusing to set aside the ex parte decree and that there being sufficient scope to construe the word "appeal" in the said manner in view of certain observations made by their lordships of the Privy Council in the case of Nagen-dranath Dey v. Sureshchandra Dey AIR 1932 PC 165, the matter required full consideration by a larger Bench, particularly in the absence of any decision of this Court or the supreme Court directly on the point involved. However, the Judicial commissioner's Court at Nagpur had taken the view in the case of Jabar-khan v. Rahimkhan AIR 1922 Nag 197 (1) that the words "where there has been an appeal" used in Clause (2) of the Article have been referred to an appeal from the decree or order sought to be executed and do not include an appeal from an order dismissing the application to set aside an ex parte decree. Similar is the view taken by the High Courts of Calcutta, Madras and Patna.

(3.) THE facts giving rise to the appeal are that an ex parte decree was passed against the appellant towards rent and mesne profits on 5-3-1959. The appellant moved an application for setting aside the ex parte decree which was dismissed by the trial Court on 30-4-1960. He further preferred an appeal against the said order which was also dismissed by the Additional District Judge on 23-7-1960. Thereafter, the respondent decree holder filed an application for execution of the decree on 9-4-1963. This application was dismissed on 21-101964 and thereafter successive applications for execution were filed. The last one was filed on 16-6-1970 and in the course of proceedings on the said application, the appellant judgment debtor raised an objection that the execution proceedings brought by the decree holder were barred by limitation, because the first application itself, having been moved after 3 years from the date of the decree sought to be executed, was barred by limitation. It would be significant to note that there was no order of stay or injunction prohibiting the execution of the decree during the proceedings of the application under Order 9 rule 13 of the Civil P. C. or the appeal arising out of the same. It was not disputed either before the learned single judge or before us that the subject-matter was governed by the provisions of Article 182 (2) of the old Limitation act and if the first application for execution moved on 9-4-1963 is held to be barred by limitation, the successive applications moved thereafter will also be hit by bar of limitation and the execution accordingly could not be proceeded,