BHIMANNA Vs. ELHARA BASAPPA

JUDGEMENT

(1.) THIS is a second appeal which has arisen in execution proceedings. The judgment -debtor is the appellant before us. The solo point to be determined in this case is as to whether the decree holder's application for execution is within time. Elhara Naganna, the father o £ the respondent before us, filed an application for foreclosure on 24th Mehar 1345 Fasli. The facts prior to this application are not necessary for the decision of the appeal now before us. This application for foreclosure was not granted but only a money decree was passed in favour of Elhara Naganna, He appealed to the Sadar Adalat against this order and the Sadar Adalat dismissed the appeal. Against this order the decree -holder appealed to the High Court, when the matter was before the High Court, the appellant decree -holder died but the application by his legal representative was filed after the period of limitation had expired. The High Court, on an application made, set aside the abatement applying Section 5, Limitation Act. Against this order setting aside the abatement of the appeal the judgment -debtor appealed to the Judicial Committee. The Judicial Committee differed from the High Court and held that the appeal which had abated could not be set aside. It allowed the appeal and held that inasmuch as the application for bringing on record was filed beyond the period of limitation, the appeal abated. This order was delivered on 14th Azur 1355 Fasli. After this order of the Judicial Committee, the case came before the High Court and in view of the order of the Judicial Committee the High Court passed the following" order on 13th Mehar 1356 Fasli: "Appeal be recorded"

(2.) AFTER these proceedings were over, the -son and legal representative of the original decree -holder filed an application for execution on 28th Khurdad 1357 Fasli. In reply to this -application, it was urged by the judgment -debtor that this application was filed after the expiry of three years from the date of the final order from which limitation would commence and that therefore the application for execution was barred by limitation. The executing Court and the lower appellate Court overruled the objection and directed execution proceedings. Against the order of the lower appellate Court, the present appeal has been preferred by the judgment -debtor. It was argued by the learned advocate for the appellant that the last order passed by the High Court on 13th Mehar 1856 Fasli could not be construed as a final order within the meaning of Article 160, Limitation Act, because that was only an order carrying out the order of the Judicial Committee. The High Court did not purport to give any decision on the merits. We are unable to agree with this argument of the advocate for the appellant. The words used in Article 160, Sub -section (2) Limitation Act, corresponding to Article 182, Sub -section (2), Indian Union Limitation Act do not warrant such an interpretation. Sub -clause (2) of this article provides for a fresh starting point of limitation for execution in case where there has been an appeal. In this case after the High Court passed the order setting aside the abatement and posting the case for arguments on the merits, the judgment debtor appealed to the Judicial Committee and the matter again became sub judice. There are no words in Sub -clause (2) of Article 160 restricting it to only appeals against the decree sought to be executed. The appeal contemplated in this clause would cover also an appeal which is capable of affecting the decree sought to be executed. As was observed by their Lordships of the Privy Council in the case of Nagendra Nath v. Suresh Chandra : 59 A.I.R. (19) 1932 P.C. 165.