ABDULLA ASGHAR ALI Vs. GANESH DAS VIG

JUDGEMENT

(1.) The principal question in this appeal is whether an application for the execution of a decree is time-barred under the provisions of Art. 182 (2), Sch. 1, Lim. Act, 1908. The article allows a period of three years only for such an application from the date of the decree, "or where there has been an appeal, the date of the final decree or order of the appellate Court."It is not disputed that if in the present case the period is to be reckoned from the date of the decree, the application was out of time, nor, per contra, if the respondents can take advantage of a certain order of the appellate Court, that it was within time. The suit out of which the appeal arises was launched as long ago as 1912. Some four years later it came up in appeal to this Board, but was sent back for trial in the Baluchistan Courts, where the proceedings dragged on for another 12 years.

(2.) On 17 November 1920, the decree of which execution is sought was passed in favour of the plaintiff, Ganesh Das Vig, by the Assistant Political Agent, Quetta. Against this decree both parties appealed to the Court of the Judicial Commissioner in Baluchistan. Two years or more were wasted in an abortive reference to arbitration, the arbitrator selected by the parties being the son of the judgment-debtor, and now, as his representative, the principal appellant before the Board. On 30 July 1923 the judgment-creditor died. His widow was brought on the record in his appeal but not in that of the judgment-debtor. On 12 May 1924 the widow died and no further substitution was made in either appeal, nor was anything done by the arbitrator.On 6 August 1924 an application was made to the appellate Court by the present respondents, as the representatives of the judgment-creditor, for an order holding that the judgment-debtor's appeal had abated. Notice was served upon the judgment-debtor, and he put in a petition in reply denying that his appeal had abated, and asking for an order that the arbitration should proceed, with an alternative prayer that in case the Court should hold that the appeal had abated, an order should be made setting aside the abatement. Upon these counter-applications both appeals were set down before the Judicial Commissioner who, by an order of 18 October 1924, held that both appeals had abated. He said it would be useless to send the matter back to arbitration, and he refused the application of the Judgment-debtor to set aside the abatement in the case of his appeal.

(3.) It is upon this order of 18 October 1924 that the respondents rely to save limitation, and the only question is whether it was a final order of the appellate Court within Art. 182 (2). Both the Courts in India have held that it was. The respondents made their application for execution on 27 October 1926. The present appellants, the representatives of the judgment-debtor, who was then dead, took various objections to the application, and after the lapse of another two years, a considerable portion of which was occupied in a search by the Court officials for the file of the case, the matter came on before the Assistant Political Agent. Objection to his jurisdiction and to the title of the respondents were disposed of in their favour. They have not been urged before the Board. On the question of limitation, the learned Judge held, following a ruling of the Calcutta Court, Gohur Behari V/s. Ram Krisna Shaha, AIR 1927 Cal 760, that the period of limitation should be calculated from 18 October 1924, the date of the Judicial Commissioner's order above referred to, and that the application was therefore in time. Having regard, however to the omission of certain particulars from the application for execution, he returned it to the respondents for amendment. The necessary amendments were made and the application was re-submitted, but apparently before it was considered by the Judge, the representatives of the judgment-debtor lodged an appeal to the Judicial Commissioner. The appeal was argued before him at great length, but was dismissed on 11 March 1929, by an order of that date. The learned Judicial Commissioner, though noting that there had been some conflict in the Indian Courts as to what should be considered a final order of an appellate Court, agreed with the conclusion to which the Assistant Political Agent had come on the question of limitation. The appellants, with the no doubt laudable ambition of completing the tale of 20 years for the duration of this suit, have appealed to His Majesty in Council against the Judicial Commissioner's decision. Their Lordships, for the reason to be stated, have no doubt that their appeal must fail, but the execution proceedings will still have to be worked out in the Political Agent's Court, and there may still be opportunities to them to delay the satisfaction of what has been so laboriously decided to be a just debt.