SHANKARLAL SHIVNARAYAN MARWADI Vs. MAHADEO ADKOBA HOTE

JUDGEMENT

(1.) THE question in this appeal is whether the decree-holder's application for execution of his decree is within time. The decree was passed on 18th November 1931. On 16th November 1934 the decree-holder applied for execution. That application was admitted on 19th November and the decree-holder was ordered to pay process fee. The decree-holder failed to pay the process-fee or to appear at the next hearing, on 5th January 1935, and the application was dismissed in default. The next application was made on 6th December 1937. The decree-holder contends that this was within time under Clause (5) of Article 182, Limitation Act, as being made within three years from the date of the final order passed on the previous application. The Additional District Judge held that the order dismissing the previous application was not a final order within the meaning of Clause (5) of Article 182 and that the present application is herefore barred.

(2.) THE learned Additional District Judge relied on the decisions of their Lordships of the Privy Council in Qamar-ud-din Ahmad v. Jawahir Lal (1905) 27 All 334 and Abdul Majid v. Jawahir Lal (1914) 1 AIR PC 66. In the latter case their Lordships were then interpreting Clause (2) of Article 182 and held that the dismissal of an appeal for want of prosecution was not the final order of the Appellate Court within the meaning of that clause. The decision in Qamar-ud-din Ahmad v. Jawahir Lal (1905) 27 All 334 was a decision on the particular facts of the case and it was held that the order was not final as it did not preclude the decree-holder from coming again to the Court. The question whether an order dismissing an appeal in default is the final decree of the Appellate Court is, in my opinion, entirely different from the question of what is the final order passed on an application for execution. It may be that the last order in point of time is not necessarily the final order and it may be, as was held in Kesavuloo v. Offlcial Receiver AIR 1936 Mad 613,that an order returning the application for correction is not a final order. Wherever an application has been put in in the correct form and is eventually dismissed for want of prosecution I find it very difficult to understand how any other order can be considered to be the final order. The learned Counsel for the respondents in this case contended that there was no final order at all and that the application for execution must be taken to have been withdrawn so that the position is the same as if it had never been made. I do not think that this contention can possibly be accepted. There was a valid application and it was dismissed by the Court. I respectfully agree with the remarks of Venkatasubba Rao J. in Chidambara Nadar v. Rama Nadar (1937) 24 AIR Mad 385 at page 465: In my opinion an order would be a final order within the meaning of the clause, if it terminates the execution proceeding so far as the Court passing it is concerned. The order need not be one on the merits, and also with the remarks of Pandurang Row J. at page 468: We are dealing with an order which rejected the execution application. That order of rejection certainly put an end to the petition so far as the court is concerned. It was contended before us that if a petition is dismissed because it is not pressed it would be a final order. I do not see why the substitution of the word 'rejected' for 'dismissed' should make any difference in deciding whether the order is final or not....In innumerable cases execution petitions are dismissed or struck off either for default or for failure to take steps, and it has never been contended that there is in such cases no final order which alone will provide a fresh starting point for limitation.