NAGAPPA BANDAPPA KADADI Vs. GURUSHANTAPPA SHANKRAPPA UMARJI

JUDGEMENT

(1.) This is an appeal in execution of the decree in suit No. 214 of 1923 against the order of the learned First Class Subordinate Judge dismissing the application of the applicant for the necessary certificate to be sent to the First Class Subordinate Judge at Sholapur under Order XXI, rules 5 and 6, and for an order of transfer of the execution under Section 39 of the Civil Procedure Code. The principal ground on which the learned First Class Subordinate Judge dismissed the application is that the application for execution is beyond time under Art. 182 of the Indian Limitation Act.

(2.) It is necessary to state the facts which have given rise to the contention that the application for execution is barred by limitation. In Civil Suit No. 214 of 1923 the assignors of the appellant, who were defendants Nos. 1 and 2, had obtained a decree against defendant No. 3 on December 14, 1925, to the extent of Rs. 42,940. Defendant No. 3 applied for a review and appeal No. 35 of 1926 was filed in the High Court against the original decree by defendant No. 2. In July 1926, the Subordinate Judge allowed the review application and on that date the decree was amended by reducing the amount to Rs. 27,940. Defendants Nos. 1 and 2 filed Appeal No. 65 of 1926 to the High Court against the order granting the review. But it appears that no appeal was filed against the final decree reducing the amount to Rs. 27,940. Both the appeals were dismissed by this Court. The judgment of the High Court is reported in Shidramappa V/s. Gurushantappa (1928) 31 Bom. L.R. 137. Appeal No. 35, which was brought against the original decree, was dismissed on the ground that it ceased to exist having regard to the later developments in the case. Appeal No. 65 was dismissed on the ground that the lower Court had jurisdiction to grant the review and the appeal was not maintainable under the Civil Procedure Code against the order granting a review. An appeal could lie only on the grounds mentioned in Order XLVII, Rule 7, as Clause (w) of Rule 1 of Order XLIII had been repealed by a rule of this Court under Section 122 of the Civil Procedure Code. The decision of the appeal was embodied in a decree in which the order of the lower Court was confirmed with costs. A decree was drawn up and an order of costs was also drawn up.

(3.) The learned Subordinate Judge held that time ran from the date of the amended decree which was July 15, 1926, and that the date of the decision in the appeal, October 29, 1928, did not give a fresh starting point of limitation under Clause (2) of Art. 182 of the Indian Limitation Act. The reasons given by the learned Subordinate Judge are, (1) that the appeal was not from the decree sought to be executed, (2) that the appeal was not competent for the reasons given in the judgment of the High Court, and (3) that the appeal was disposed of on a preliminary objection raised by the respondent and was not heard and decided on the merits and there was no real adjudication on the merits.