OM CHAND Vs. LALMAN

JUDGEMENT

(1.) IN this appeal by judgment debtors against the order of the Subordinate Judge, Mandi, rejecting their objections under Section 47, C. P. C., learned counsel urges that the pending execution petition is time barred and the finding of the Court below to the contrary is erroneousr

(2.) TO understand the point at issue, the following facts may be stated: Lalman (the respondent here) filed a suit against Brikam Das, Mayadhar (father of the appellants) and one Ramditta, Mal for the recovery of Rs. 8,250/ , with interest. The suit was dismissed as against Ramditta Mal on 23 10 1992 B., presumably, under Order 1, Rule 10, C. P. C. The suit then proceeded against the remaining defendants. On 13 12 1992 B., the latter made a statement, admitting the plaintiff's claim, and, thereupon, a decree was passed against them on the same day for Rs. 8,250/ , plus interest and costs. It would appear that the plaintiff, being aggrieved by the order dated 23 10 1992 (dismissing the suit as against Ramditta Mal), went up in appeal to the Ijlas i alia of Mandi. That appeal was rejected on 28 5 1999 B.

(3.) THE Court below, relying upon 'Nagendra Nath v. Suresh Chandra, AIR 1932 PC 165 (A) and 'Nacharainmal v. Veerappa Chettiar', AIR 1946 Mad 231 (B), held in favour of the decree holder. Learned counsel for the appellants argued and, in my opinion, with justification that the facts of the present case are clearly distinguishable from those of the two rulings cited above. In AIR 1932 PC 165 (A), the facts were that an application, purporting to be an appeal from the order of the Subordinate Judge, was presented to the High Court and in that appeal only the other decree holders were joined and not the judgment debtors. The appeal was dismissed on the ground of irregularity and also on merits. Subsequently, an application, by way of execution, was made to the Subordinate Judge and the question arose whether the so called appeal, preferred to the Calcutta High Court, was an appeal within the meaning of Article 182, Col. 3, para, 2. The Subordinate Judge answered the question in the affirmative. An opposite view was taken by the High Court, which dismissed the execution application. When an appeal was taken to His Majesty, their Lordships of the Privy Council held that: "There is 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; the words mean just what they say. 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 pre judiced. He may indeed obtain the booth of delay, which is so dear to debtors. Hence, the contention that an appeal in order to save limitation under Clause 2 of the Article, must be one to which the persons affected were parties and that it must also be one in which the whole decree was imperilled, is not sound." In AIR 1946 Mad 231 (B), the facts were that on 1 12 1922, the Subodinate Judge of Dindigul granted a conditional decree for possession of the suit property. On 28 9 1926, that decree was confirmed, subject to a modification with regard to the amount payable under the decree. Both sides appealed to the High Court. Both the appeals were rejected on 21 11 1930. On 13 8 1942, the decree holder filed an application for execution. Objection was taken in the executing Court to the effect that the petition was time barred. The objection was overruled by the Subordinate Judge and his decision was upheld by the District Judge. Then, there was an appeal which was rejected by a learned single Judge of that High Court. Then, there was a Letters Patent appeal, which was heard by a Division Bench. That appeal was also rejected ana in doing so, Leach C. J., and Lakshmana Rao J., observed as follows: