JAGANNATH BAL Vs. SADHU CHARAN BAL

JUDGEMENT

(1.) This is an application against a decision of the District Judge of Cuttack in which he held that an application to execute a decree was barred by time under Section 48, Civil P.C., having been presented more than 12 yeans beyond the date of the decree sought to be executed. The relevant dates are that a decree was obtained on 23 November 1928, that an application in revision to the High Court was summarily rejected on 4 May 1929 and that the application to execute the decree has been presented on 12 February 1941. I am told there have been intermediate applications to execute the decree between which in no case has a period of three years or more expired so as to bar the execution under Art. 182 of the schedule to the Limitation Act. The point for determination is whether the starting point for the 12 years period in Section 48 is to be reckoned from 23rd November 1928 or from 4 May 1929.

(2.) The Subordinate Judge had permitted the decree-holder to count time from 4 May 1929 relying on a decision of this Court in Ram Ranvijaya Prasad Singh v. Kesho Prasad Singh A.I.R. 1938 Pat. 401. In that case the question was whether the relevant date was the date of the decree of the original Court or the date of the final order of the appellate Court dismissing the appeal from the original Court's decree. It was held that time ran from the date of the appellate Court's order. The ground given was that the decree, holder was entitled to count time not from the starting point mentioned in Section 48 but from the starting point mentioned in Art. 182(2) of the schedule to the Limitation Act. The District Judge held that a mere perusal of Section 48 and of Art. 182 showed that Section 48 had to be applied according to its terms and construed independently of any considerations arising upon Art. 182. He relied on a Pull Bench decision of the Madras High Court in Veear Ramchandra Rao V/s. Parasuramayya A.I.R. 1940 Mad. 127 and on a Division Bench ruling of the same High Court in Nagalinga Chetty V/s. Srinivasa Iyengar A.I.R. 1941 Mad. 477.

(3.) In the former case the question was whether time ran from the date of the judgment or from the date on which the decree was subsequently amended. The latter case was one in which there had not been an appeal from the original decree but an application in revision so that the facts were almost on all fours with those at present under consideration. He also referred to a decision of the Patna High Court in Mt. Dulhin V/s. Harihar Gir A.I.R. 1939 Pat. 607 in which some of the reasoning of the Patna decision of 1938 was doubted. In Mt. Dulhin V/s. Harihar Gir A.I.R. 1939 Pat. 607 as in the Full Bench decision of the Madras High Court, the question was whether time under Section 48 ran from the date of the original decree or from the date of an amended decree and it was held that the matter had to be considered on the terms of Section 48 itself and not of any article of the Limitation Act, this view being supported by authorities in Bombay, Allahabad, Calcutta (approved by Privy Council), Lahore and Lucknow.