JAYANTI VENKAYYA Vs. DAMISETTI SATHIRAJU AND SIX ORS

JUDGEMENT

(1.) This is an Appeal from the judgment of the Subordinate Judge's Court of Cocanada in a mortgage suit and a question of some importance has been argued before us by Mr. Somasundaram as to whether the starling point for an application for a decree absolute under Order XXXIV, Rule 5, Civil Procedure Code, which is governed by Art. 181 of the Limitation Act, is the date of the original decree or the date of the appellate decree which affirmed the original decree.

(2.) It had long been regarded as well-settled in this Court that the starting point under Article 181 was the date of the appellate decree, and there is a decision of the Privy Council in Bhup Indar Bahadur Singh V/s. Bijai Bahadur Singh (1901) I.L.R., 23 All., 152 (P.C.) which strongly supports that view. In that case, the District Judge passed a decree giving the plaintiff possession with future mesne profits. That decree was set aside by the High Court and was restored after a great many years by the Privy Council. The question then arose in execution as to the date from which mesne profits should be calculated under the provisions of Section 211 of the Old Code (Act XIV of 1882), and their Lordships observed, at page 158, The Court is now executing not the District Judge's decree of 1887, but the Queen's Order of 1895 which, by affirming the District Judge's decree, has adopted its terms and has carried on their effect down to a later date.

(3.) Those observations of the Privy Council are entirely in accordance with what has till recently been the established view in this Court. If the date of the final decree was the proper date to have regard to for the purposes of Section 211, Civil Procedure Code, it follows that it is equally the proper date to have regard to with reference to an application for a decree absolute under Order XXXIV, Rule 5.