RAMESHWAR PRASAD SAHU Vs. PARMESHWAR PRASAD SAHU

JUDGEMENT

(1.) The question which has been referred to this Bench for decision has been stated by Sinha and Rai JJ. thus :

(2.) The question as to whether a more extended meaning can be given to the word "decree" in Clause (2) of Article 182 arose in a more acute form in consequence of the amendments made in 1908 in the Transfer of Property Act and the Code of Civil Procedure. Until 1908 a mortgagee, who had obtained a preliminary-decree for sale, was, on the expiry of the period fixed for the payment of the mortgage money, entitled under Section 89, T. P. Act (sic) was repealed and Order 34, Rule 5, Civil P. C. was enacted under which a mortgagee was required to obtain a final decree for pale, and, when that decree was passed, to apply in the course to levy execution on it. In 1927 in Somar Singh v. Deonandan Prasad, 6 Pat. 780-: (A. I. R. (14) 1927 Pat. 215), a Division Bench of this Court was called on to decide whether an application for the execution of a final decree in a mortgage suit was not barred by limitation in spite of the fact that a period of more than three years had elapsed between the passing of the decree and the making of the application. The preliminary decree was passed on 23-8-1921, and the final decree on 28-10-1922. In the interval an appeal against the preliminary. decree was preferred and was ultimately dismissed on 29-10-1925. The application for execution of the final decree was made on 2-2-1926, that is, more than throe years after the final decree was passed, but within three years after the dismissal of the appeal against the preliminary decree. Kulwant Sahay and Ross JJ., held that, in such circumstances, the application for execution was not barred by limitation, and an application for leave to appeal to the Privy Council against their decision was rejected. This decision was followed by Venkata Ramana Rao J., of Madras High Court in Koyakutti v. Verrankutti, A. I. R. (24) 1937 Mad. 421 : (171 I. C. 980) and an appeal under the Letters Patent against his decision was dismissed. Prior to this, however, another learned Judge of the Madras High Court sitting singly, Madhavan Nair J. in Ahammad Kutty v. Kottakkat Kuttu, 56 Mad. 458 : (A. I. R. (20) 1933 Mad. 315) had taken a contrary view. Since then, a contrary view has also been taken by a Division Bench of the Bombay High Court in Mahadeo Bhimasankar Madhava v. Fatumiya Husseinbhai, I.L.R. (1948)Bom. 521:(A.I.R. (35) 1948 Bom. 337). Kulwant Sahay J., in Somar Singh v. Deonandan Prasad Singh, 6 Pat. 780 at p. 785 : (A. I. R. (14) 1927 Pat. 215) observed :

(3.) The decisions of this Court to which I have just referred are of importance only in so far as in them, for the first time, since 1879, a gloss was put on the word 'appeal' as it occurs in Clause (2) of Article 182 and, in consequence of them, a further and much more serious gloss was put on that word in certain decisions of the Madras High Court. The decisions in question are Sriramachandra Rao v. Venkate-shwara Rao, I.L.R. (1939) Mad. 252: (A.I.R. (26) 1939 Mad. 157) and Thandavaroya Gramani v. Arumughamudali, A. I. R. (32) 1945 Mad. 261 : (1945-1 M. L. J. 421). In each of them another decision of this Court, namely, Firm Dedhraj Lachminarain v. Bhagwan Das, 16 Pat. 306 : (A. I. R. (24) 1937 Pat. 337) was cited and relied on. In that case, as also in two of the three Madras cases, the question that arose was the question which we now have to decide, namely, whether, in the event of an application being made to have an ex parte decree set aside and an appeal being preferred against an order rejecting the application, the period of limitation for the execution of the decree is to be computed from the date of the ex parte decree or from the date of the order of the appellate Court finally dismissing the application under Order 9, Rule 13, Civil P. C. Courtney-Terrell C. J. and James J. held that limitation did not commence to run before the order of the appellate Court affirming the order rejecting the application to have the ex parte decree set aside. In doing so, Courtney-Terrell, C. J. expressed the opinion that the long series of decisions to the contrary had been impliedly overruled by the decision of their Lordships of the Judicial Committee in Nagendra Nath Dey v. Suresh Chandra De, 59 I. A. 283 : (A. I. R. (19) 1932 P. C. 165). I will defer, for the moment, examining this point or dealing with the reasoning contained in the Judgment of the learned Chief Justice as Mr. S. K. Dutta, for the appellants, did not support that reasoning in its entirety and relied mainly on the Madras decisions to which I have just referred. The argument put forward by Mr. Dutta was, in short, that an appeal against an order rejecting an application to have an ex parte decree set aside is an order made in an appeal in the suit which is likely to affect the decree sought to be executed. It must be conceded that, if the decisions of the Madras High Court are correct, there is much substance in the argument put forward by Mr. Dutta. In Sriramchandra Rao v. Venhateshwara Rao, I.L.R. (1939) Mad. 252 : (A. I. R. (26) 1939 Mad. 157), King J., expressed the opinion that 'appeal' in col. 3 of Article 182 means an appeal in the suit which is likely to affect the decree sought to be executed and not merely an appeal against the actual decree or order sought to be executed. Kulwant Sahay J. had taken the view that the word 'appeal' ought to be construed as meaning an appeal which results in the decree of which execution is sought being imperilled, and, as I have already said, an attempt to so construe the word can be justified by one of the two principles underlying Article 182. No such justification, however, exists for putting on the word 'appeal' the more extended meaning given to it by King J. It is quite clear that no issue arising in the suit again becomes sub judice between the parties when an application is made for an ex parte decree to be set aside or when, an appeal is preferred against an order rejecting such an application. No such issue can become sub judice unless and until the ex parte decree is set aside and the suit is ordered to be re-heard.