LOKE NATH SINGH Vs. GAJU SINGH

JUDGEMENT

(1.) This appeal is directed against an order in proceedings in execution of a decree for delivery of possession of land made on the 17th September 1903. The question in controversy is, whether an application for execution of this decree, made on the 7th May 1910, is barred by limitation. The Courts below have concurrently held that the application is not barred. We are now invited by the judgment-debtors to hold that this view is erroneous in law. For the determination of the question raised before us, it is necessary to recapitulate the essential: facts, which are all admitted.

(2.) The plaintiffs sued two sets of persons, who may be called A and B, for recovery of possession of land. A petition of compromise was filed on behalf of some of the defendants. The Court came to the conclusion that the compromise was operative only as regards some of them (A) and gave effect to it to that extent. The suit was heard on the merits as against all the other defendants (B). The result was a two-fold decree, first, for possession as against the consenting defendants (A), without mesne profits or costs; and, secondly, for possession against the contesting defendants (B), who were made liable for costs and mesne profits. B appealed to the District Judge and valued their appeal at the value of the subject-matter of the entire property involved in the suit in the Court of first instance. They did not join A as respondents; the only respondents to the appeal were the successful plaintiffs. The appeal was preferred on the 25th, January 1904. The parties, however, agreed to await the decision of this Court in an analogus litigation, which had been brought up here by way of first appeal. After the disposal of that appeal by this Court, the appeal before the District Judge was taken up, and was dismissed on the 8th May 1907, on the footing of the agreement that the parties would abide by the decision of the High Court in the suit previously mentioned.

(3.) The present application for execution of the decree of the 17th September 1903 was made on the 7th May 1910. On the 28th August, writ for delivery was issued; and it is alleged that the decree-holders were placed in possession on the 5th September. On the 29th September, however, objection was taken by the judgment-debtors that the decree was incapable of execution as the rights thereunder had been extinguished by the Statute of Limitation. The Courts below have overruled this contention. On the present appeal, the controversy has centred round Clause 2 of the third column of Article 182 of the Schedule to the Indian Limitation Act. That clause provides that an application for execution of a decree of a Civil Court not provided for by Article 183 or Section 43 of the Code of 1908 must be made within three years from the date of the final decree of the Appellate Court or the withdrawal of the appeal, where there has been an appeal, On behalf of the judgment-debtors appellants reliance had been placed up on the cases of Sreenath v. Brojo Nath 13 W.R. 309 : 4 B.L.R. Ap. 99; Wise v. Raj Narain Chuckerbutty 10 B.L.R. 258 : 19 W.R. 30 (F.B.); Hur Proshad v. Enayet Hossain 2 C.L.R. 471; Raghunath Pershad v. Abbul Hye 14 C. 26; Christiana Benshawn v. Benarasi Proshad 22 Ind. Cas. 685 : 19 C.W.N. 287; Sangram Singh v. Bujharat Singh 4 A. 36 : A.W.N. (1881) 128; Mashiat-un-nissa v. Rani 13 A. 1 : A.W.N. (1889) 207 and Badi-un- nissa v. Shams-ud-din 17 A. 103 : A.W.N. (1895) 20. On the basis of these decisions the argument has been founded that as the decree holders could have executed the consent decree obtained by them against A, notwithstanding the pendency of the appeal preferred by B, they could not claim the benefit of Clause (2) of the third column of Article 182. The contention in substance is that in reality there are two completely distinct decrees on the same sheet of paper and the fact that an appeal had been preferred by B against one of these decrees, does not entitle the decree-holders to an extension of time against A in respect of the other decree. It is further pointed out that not only was not an appeal preferred against the consent decree, but under the law an appeal could not have been preferred against that decree. Sir Rash Behary Ghose for the appellants has, however, drawn our attention to the decisions in Mullick Ahmed Zumma v. Mahomed Syed 6 C. 194 : 6 C.L.R. 573; Basant Lal v. Nojmunnissa Bibi 6 A. 14 : A.W.N. (1883) 179; Gungamoyee v. Shib Sunker 3 C.L.R. 430; Nundun Lal v. Rai Joykishen 16 C. 598; Kristo Churn Dass v. Radha Churn Kur 19 C. 750; Nurul Hasan v. Muhammad Hasan 8 A. 573 : A.W.N. (1886) 237; Muthu v. Chellappa 12 M. 479 and Gopal Chunder v. Gosain Das Kalay 25 C. 594 : 2 C.W.N. 556. Some of these cases are possibly distinguishable, but it has not been disputed that from the others a rule is deducible which would negative the contention of the appellants. On behalf of the respondents, reliance has been placed particularly upon the cases of Badi-un-nissa v. Shams- ud-din 17 A. 103 : A.W.N; Gopal Chunder v. Gosain Das 25 C. 594 : 2 C.W.N. 556; Ashfaq Husain v. Gauri Sahai 9 Ind. Cas. 975 : 15 C.W.N. 370 : 8 A.L.J. 332 : 9 M.L.T. 380 : 13 Bom. L.R. 367 : 4 Bur. L.T. 121 : 21 M.L.J. 1140 : 38 I.A. 37 : 33 A. 264 : 13 C.L.J. 351, which, it has been contended, negative the position taken up by the appellants.