OORAKARAI SEETHARAMA CHETTIAR Vs. SHEIK ABDUL RAHIMAN SAHIB

JUDGEMENT

(1.) The Letters Patent Appeal involves the question of the effect of the judgment of this Court in Sriramachanara V/s. Venkateswara . In that case a Division Bench consisting of King and Krishnaswami Aiyangar, JJ., held that the word appeal in the third column of Art. 182 of the Limitation Act 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. In other words, the word appeal does not necessarily mean an appeal from the decree or order referred to in the first column of the Article. In the present case the facts are very different from the facts in Sriramachandra V/s. Venkateswara and King, J., whose judgment is now under appeal, has held that the decision in Sriramachandra v. Venkateswara does not, govern the present case.

(2.) In Sriramachandra V/s. Venkateswara there was an appeal against an order refusing to set aside an ex parte decree and the Court held that the period of three years prescribed by Art. 182 ran from the 20 October, 1932, the date of the appellate decree of the High Court, and not from the 5 March, 1930, the date of the ex parte decree. In the case now before the Court a preliminary mortgage decree was passed on the 3 April, 1928, in favour of the appellant and the final decree followed on the 9 November, 1929. On the 24 November, 1931, the judgment-debtors applied for an order directing the entering up of satisfaction of the decree. The appellant denied that the decree had been satisfied and on the 28 November, 1931, he applied for the sale of the mortgage property, but his application was dismissed on the 2nd April, 1932. On the 30 June, 1932, the Court also dismissed the application by the judgment-debtors for an order directing satisfaction to be entered up. The judgment-debtors appealed against the order dismissing their application but were again unsuccessful. The decree of the appellate Court was passed on the 20 March, 1933. On the 21 August, 1935, the appellant again applied for the sale of the mortgage property in pursuance of the final decree obtained by him on the 9 November, 1929. This application was opposed on the ground that the decree had become barred by limitation inasmuch as more than three years had elapsed from the dismissal of the appellant's previous application. The appellant's case was that the period of limitation commenced to run against him only from the 20 March, 1933, when the appeal filed by the judgment-debtors against the order on their application was decided. The District Munsif of Salem, in whose Court the mortgage decree was passed, decided against the appellant and his judgment was upheld by the District Judge of Salem on appeal. King, J., on second appeal agreed that the Courts below were right.

(3.) The argument advanced on behalf of the appellant is that the application filed by the judgment-debtors for an order directing the entering up of satisfaction was an application which was likely to affect the decree, because if it were granted it would mean that there will be no decree to execute. Therefore the appellant was entitled to wait until the application had been finally decided before taking any further steps to bring the mortgage property to sale.