JADU NANDAN RAM Vs. PARSOTAM GINNING CO LTD

JUDGEMENT

(1.) A suit for recovery of money was instituted against five defendants. The first Court decreed the claim against defendants 3, 4 and 5 but dismissed it as against defendants 1 and 2. The decree of the first Court was passed on 12 May 1923. An appeal was preferred by the plaintiff from that portion of the decree which dismissed his claim against defendants 1 and 2. He impleaded defendants 1 and 2 only in the appeal and did not implead the remaining defendant 5, namely Mohan, died on 28 July 1926. On 28 October 1926, the appeal was allowed by the High Court. In the course of the judgment it was pointed out that defendants 1 and 2 were also liable. The form in which the decree was prepared was to the effect that the plaintiff's suit was decreed against all the defendants.

(2.) An application for execution of the decree against the heirs of defendant 5 was filed on 18 September 1928, in which it was recited that there had been two previous applications for execution on 17 January 1924 and 2 August, 1927. The judgment-debtor, among other pleas, took the objection that the application was time barred, because time began to run from the first Court's decree dated 12 May 1923. The execution Court has overruled this objection, holding that time began to ran from the date of the appellate Court's decree, viz., 27 October 1926.

(3.) Under Art. 182 time in the case of an application for execution begins to run from the date of the decrees or where there has been an appeal, the date of the final decree or order of the appellate Court or the withdrawal of the appeal. The expression final decree clearly implies that the appeal should be from the decree which is sought to be executed; or, at any rate in the appeal that decree should be impugned, so that the order passed by the appellate Court should finally incorporate the decree of the first Court. In case3 where the first Court's decree becomes merged in the appellate Court's decree, time, of course, begins to run from the date of the appellate Court's decree. That article, in our opinion does not mean that, even if an appeal has been preferred against other defendants in which the decree against some defendants who are not parties to the appeal is not challenged in any way and has, in fact, become final, the time can still be enlarged by reason of the appeal. The final decree of the appellate Court must be such a decree as amounts to a formal expression of an adjudication conclusively determining the rights of the parties with regard to the matter in controversy as laid down in Section 2.