SASHI BHUSAN RAI Vs. BHUNESHWAR RAI

JUDGEMENT

(1.) THE only question for determination in this appeal is as to whether the application for execution of the decree in partition suit No. 36 of 1945 D/- 29-1-1047 was barred by time. Against the decree in the aforesaid partition suit an appeal had been filed to this court which was admitted and registered as First Appeal No. 162 of 1947. On 20-10-1948 a Bench of this court gave to the appellants in first Appeal No. 162 of 1947 six weeks time to deposit the printing cost, failing which the appeal would stand dismissed without further reference to the Bench. THE order of the Bench not having been complied with the appeal stood dismissed. THE application for execution of the decree was filed on 12-4-1950 which was certainly more than three years from 29-1-1947, the date of the decree. It was, however, within three years from the order of this court. THEre is no dispute between the parties that if the period of limitation is counted from the order of this court, then the application for execution was within time. If, on the other hand, the period of limitation was to be counted from the date of the decree, then the application for execution was out of time.

(2.) THE provision of the Limitation Act which governs the matter is Article 182(2) of that Act. It provides a period of three years for the execution of a decree or order of a Civil Court not provided for by Article 183 of the Act or by Section 48, of Civil P.C., from the date of the final decree or order of the appellate court, or the withdrawal of the appeal, where there has been an appeal. THEre can be no question in -my judgment that when the appeal was admitted by this court and registered as First Appeal No. 162 of 1947 there had been an appeal against the decree of the Court of the first instance. We may take it as a fact that actually no decree was prepared by this Court in pursuance of the peremptory order concerning the deposit of printing cost resulting in the dismissal of the appeal. What has to be decided is as to whether there is an order of the appellate Court and whether time should be calculated from the date of that order. As I have said, First Appeal No. 162 of 1947 was admitted and registered, and it has been dismissed. It certainly was not dismissed automatically under any rule of the court; nor was it dismissed by any order of the Registrar, as it could not be. THE appeal clearly stood dismissed as the result of an order of this Court. In construing the provisions of a statute it is the bounden duty of the court to give the ordinary and the plain meaning to the words used in the statute. THE words of the Limitation Act as contained in Article 182(2) arc plain enough, and there is no ambiguity about them. THEre was, undoubtedly, an order of this court directing the dismissal of the appeal if the appellants did not carry out the direction of the court. In the case of --'Nagendra Nath v. Suresh Chandra', AIR 1932 PC 165 (A), the Privy Council considered the provisions of Article 182(2), Limitation Act, and Sir Dinshah Mulla delivering the judgment of the Privy Council made the following observation: "THEir Lordships think that nothing would be gained by discussing these varying authorities in detail. THEy think 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. THEre is, in their Lordships' opinion, no 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 in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. 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 thorney path of execution which, if the final result" is against them, may lead to no advantage." His Lordship further observed: "But whether there be or be not a theoratical justification for the provision in question, their Lordships think that the Words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of 24-6-1920, time only ran against the appellants from 24-8-1922, the date of the Appellate Court's decree." Indeed, Sir Dinshah Mulla has pointed out that so long as there is any question sub-judice between the parties those affected shall not be compelled to pursue the so often thorny path of execution. It seems to me that the moment the appeal was admitted by this court the decree-holder was not compelled to put in an application for execution of the decree, because the matter was still sub-judice as between him and the judgment-debtors. THE matter could only cease to be sub-judice when the final result was known so far as this Court was concerned where the appeal was pending. THE decree-holder had to wait until the period given by this court for depositing the printing cost had elapsed. THE decree-holder could only then know that so far as this court was concerned the appeal stood dismissed and the matter was no longer sub-judice as between him and the judgment-debtors. It would be quite wrong, in these circumstances, to read into the words of Article 182(2), Limitation Act, a meaning which is contrary to the plain and ordinary meaning of the words actually used. THEre has, however, been some confusion in supposing that certain decisions of the Privy Council support the view that where an appeal pending in a High Court is dismissed for default, the period of limitation for the execution of the decree runs from the date of the decree and not from the order of the court under which the appeal stood dismissed. In the case of -- 'Chandri Abdul Majid v. Jawahir Lal', AIR 1914 PC 66 (B), the Privy Council held that an order of His Majesty in Council dismissing an appeal for want of prosecution did not deal judicially with the matter of the suit, and could in no sense be regarded as an order adopting or confirming the decision appealed from, that it merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and that therefore he was in the same position as if he had not appealed at all. THE report, however, does not show that the appeal before the Privy Council was dismissed by any order in Council. It may well have been dismissed under Rule V of the Order in Council as was the case in -- 'Batuk Nath v. Mt. "Munni Dei', AIR 1914 PC 65 (C). It is pointed out in 'Batuk Nath's case (C)', that there was no order of His Majesty in Council dismissing the appeal, nor was it necessary that any such order should be made in the appeal, and that under Rule V of the. Order in Council of 13-8-1853, the appellant or his agent not having taken effectual steps for the prosecution of the appeal, the appeal stood dismissed without further order. In the case of -- 'Sachindra Nath v. Maharaj Bahadur Singh', AIR 1922 PC 187 (D) the Privy Council reaffirmed the view expressed in the two cases to which I have made reference. This was also a case where the appeal to the Privy Council was dismissed for want of prosecution. THE judgment of Lord Atkinson shows that the appeal before the Privy Council was dismissed in the usual course in the office of the Privy Council for want of prosecution. His Lordship referred to the observation of Lord Moulton in AIR 1914 PC 66 (B) as the basis for that decision. Lord Moulton stated: "THE order (i.e., the formal order) dismissing the appeal for want of prosecution, did not deal judicially with the matter of the suit, and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all". Lord Atkinson, therefore, thought that the period of limitation ran from the date of the decree. An important decision of the Privy Council reported in -- 'Abdulla Asghar Ali v. Ganesh Das Vig' AIR 1933 PC 68 (E)', has held that when an order is judicially made by an appellate Court which has the effect of finally disposing of an appeal, such an order gives a new starting point for the period of limitation prescribed by Article 182(2). Sir George Lowndes, in delivering the judgment of Privy Council, referred to the cases of AIR 1914 PC 65(C) and AIR 1914 PC 66(B) and held that on the facts of the particular case before them the period of limitation would run from the date of the order of the appellate Court. After having referred to certain passages from the judgments of Sir John Edge and Lord Moulton, Sir George Lowndes observed: "In the case now before their Lordships it is manifest that there was an order of the Appellate Court, and that it did deal judicially with the matters before it. THE Judicial Commissioner considered the judgment-debtor's contention that his appeal had not abated, and held that it had. He considered the prayer for revival of the arbitration and refused it. He rejected the application to set aside the abatement. Whether the order made was right or wrong is immaterial; there was no appeal against it, and it was in the circumstances clearly final. THEir Lordships think that when an order is judicially made by an Appellate Court which has the effect of finally disposing of an appeal, such an order gives a new starting point for the period of limitation prescribed by Article 182(2) of the Act of 1908. THEy recognize that there has been some difference of opinion upon this question in Indian Courts, but they think that the principle enunciated above is in accordance with the view taken in the majority of cases and is the effect of the decision in --'Gour Bepari v. Ram Krishna Saha', AIR 1927 Cal 760 (F), on which both Courts have relied in the present proceedings." It seems to me that after what Sir George Lowndes has said the order of this Court granting the appellants in First Appeal No. 162 of 1947 certain time to deposit the printing cost was a judicial order, and the further direction that if the printing cost was not deposited within the time allowed the appeal would stand dismissed without further reference to the Bench was not only a judicial order but an order which, if not complied with, finally disposed of the appeal. In Abdulla Asghar Ali's case (E), as a result of consideration of various matters, it was held by the appellate court that the appeal had abated. THE effect of that decision was, so far as the appellate Court was concerned, to finally dispose of the appeal. It seems to me, therefore, having regard to what the Privy Council has said on the matter, it would be impossible to say in the circumstances of the present case that there was no order of this court by which the appeal was finally disposed of. In the case of -- ' Raghu Prasad Singh v. Jadunandan Prasad Singh', AIR 1921 Pat 6 (G), Sir Dawson Miller, Chief Justice, considered the Privy Council cases of AIR 1914 PC 66 (B) and AIR 1914 PC 65 (C), and distinguished the same. He observed : "Now the ground upon which that decision was come to cannot possibly apply in the case of an order made by the High Court in an appeal of this nature for the simple reason that an appeal presented to the High Court is not automatically dismissed and cannot in fact be dismissed without an order made by the High Court itself when the matter is considered, not necessarily upon the merits of the case, but is considered and dealt with." THE case with which Sir Dawson Miller was dealing with was one where the appeal to this Court was dismissed on account of failure to pay the printing costs. Sir Dawson Miller was of the view that where there had been an appeal and where that appeal had been presented and was within time any order of the High Court dismissing the appeal or putting an end to the appeal in any way was either a decree or order within the meaning of Article 182(2) even though the order was not one of which execution could be sought. In -- 'Krishnakant Prasad v. Radhey Singh', AIR 1938 Pat 79 (H), a Division Bench of this court held that for the purpose of Article 182(2), Limitation Act, 1908, time began to run from the date of the order of the appellate court when an appeal had been preferred and it was immaterial that it had been preferred on insufficient court-fee and had been subsequently rejected. Fazl Ali, J. (as he then was) relied upon the decision of the Privy Council in AIR 1932 PC 165 (A), and he referred to the observation of Sir Dinshah Mulla. THE dissenting view so far as this court is concerned was expressed in the case of ' Hirday Narayan Singh v. Maheshwari Prasad Singh', AIR 1932 Pat 251 (I), where a Division Bench of this Court dissented from the decision of the Division Bench in AIR 1921 Pat 6 (G). Apart from the question as to whether the decision of one Division Bench can overrule the decision of another Division Bench, it seems to me that the decision in AIR 1932 Pat 251 (I), can no longer be regarded as good law in view of the Privy Council decision in AIR 1932 PC 165 (A). THEre is the further question that if there are two conflicting decisions of a Division Bench of this Court, the opinion expressed by the first Division Bench must prevail. It seems to me, therefore, that on both grounds it is impossible for me to follow the decision in AIR 1932 Pat 251 (1).