ABDUL ALIM Vs. ABDUL HAFEZ

JUDGEMENT

(1.) This appeal which is by the judgment-debtor arises out of certain execution proceedings. The facts are these : The plaintiff brought a suit for the recovery of certain properties which were described in four schedules. He obtained a decree on 31 March 1908, so far as regards the properties in Schedule IV. His claim for the properties in Schedules I, II, III was dismissed. Against that portion of the decree by which his claim was dismissed, he appealed first to this Court and then to the Privy Council. He was equally unsuccessful in both Courts. The order of the Privy Council dismissing his appeal is dated 22 January, 1920.

(2.) There was no appeal by either party regarding the Schedule IV properties. The decree- holder then on 8 December 1922, applied for execution of the decree so far as Schedule IV properties were concerned. The judgment-debtor objected that the decree could not be executed now as it was barred by limitation. He contended that limitation began to run from the date of the decree in the suit in 31 March 1908, by the trial Court. The decree-holder contended that limitation ran from 22 January, 1920, the date when his appeal was finally disposed of by the Privy Council. The decree-holder's contention fourfd favour with the executing Court and hence this appeal by the judgment-debtor. The judgment-debtor contends that so far as the decree regarding the lands covered by Schedule IV are concerned there was no appeal. The decree of 1908 may be split up into several parts, viz., the part in favour of the plaintiff and the part in favour of the defendant. The appeal was only as regards that part of the decree in favour of the defendant and so that with regard to that part of the decree in his favour if was never imperilled by the appeal regarding the other part. Hence time ran from the date of the original decree. The decree-holder, on the other hand, contends that it is not possible to split up a decree into different parts and that when a decree is appealed against it makes no difference whether it is the whole or only part of the decree that is challenged. Time runs from the date of the final decree.

(3.) The point is one which has given rise to a considerable conflict of authorities although the words of the article itself seem sufficiently clear and would admit of only one interpretation. The words used in Art. 182(2) are: Where there has been an appeal, the date of the final decree or order of the appellate Court, or the withdrawal of the appeal.