FIRM DEDHRAJ-LACHMINARAYAN Vs. BHAGWAN DAS

JUDGEMENT

(1.) This is an appeal by the decree-holders, and it arises out of execution proceedings. The judgment-debtors contended that the execution case was barred by limitation; and this Contention was rejected by the Munsif but allowed by the District Judge on appeal. The suit was tried in 1931 and was dismissed by the trial Court on January 8, of that year. On August 7, following, an appeal was allowed and the suit decreed ex parte by the lower Appellate Court. Upon this the defendants made an application under Order XLI, Rule 21, on August 27. On November 19, the application was rejected by the lower Appellate Court. Against this rejection there was an appeal to the High Court, which was dismissed on September 1, 1933. The application of the decree-holders for execution was filed on November 15, 1934, which is more than three years from August 7, 1931, the date when the appeal was allowed and the suit itself decreed, and the question raised is whether the appeal against the rejection of the application under Order XLI, Rule 21, which appeal was dismissed on September 1, 1933, will provide the starting point for limitation for the execution. Art. 182, Limitation Act, provides a period of three years for the execution of such decrees, the starting point being (1) Pat 157 the date of the decree, or (2) "(where there has been an appeal) the date of the final decree or order of the Appellate Court". So far as the decree under execution is concerned, there was no appeal. The proceedings under Order XLI, Rule 21, which were brought up to this Court in appeal, are analogous to proceedings under Order IX, Rule 13, in the case of decrees passed ex parte by the trial Court: and there are several express decisions where it has been held that proceedings of that kind do not postpone the starting point of limitation. In Rai Brijraj V/s. Nauratan Lal 3 P.L.J. 119 : 44 Ind. Cas. 575 : A.I.R. 1917 Pat 157 it was held by Chairmen, C.J. and Sharfuddin, J. that the words "where there has been an appeal" in Art. 182, Limitation Act, mean where there has been an appeal against a decree in the suit, and cannot be held to include an appeal against an order made on an application to set aside that decree. This decision is binding on me sitting singly. Not only is it in accordance with earlier decisions from Bombay and Madras as well as Calcutta, but it has been followed in the Calcutta High Court in such cases as Fakir Chand V/s. Daiba Charan 54 C. 1052 : 104 Ind. Cas. 466 : A.I.R. 1927 Cal. 904 and Prafull Kumar Basu V/s. Sorojbala Basu 35 C.W.N. 155 : 131 Ind. Cas. 263 : A.I.R. 1931 Cal. 332 : 52 C.L.J. 594 : Ind. Rul. (1931) Cal. 439. I do not think that anything said in Somar Singh V/s. Deonandan Prasad 6 Pat. 780 : 102 Ind. Cas. 811 : A.I.R. 1927 Pat. 215 : 8 P.L.T. 379 regarding the case of Rai Brijraj V/s. Naura-tan Lal 3 P.L.J. 119 : 44 Ind. Cas. 575 : A.I.R. 1917 Pat 157 has the effect of shaking the authority of that decision. The learned Advocate for the appellants has, however, relied on two Privy Council decisions in support of the contention that the view taken in this Court must be taken to be overruled. One of these decisions is Nagendra Nath Dey V/s. Suresh Chandra Dey 36 C.W.N. 803 : 137 Ind. Cas. 529 : A.I.R. 1932 P.C. 165 : 59 I.A. 283 : 60 C. 1 : Ind. Rul. (1932) P.C. 195 : (l932) A.L.J. 643 : 34 Bom. L.R. 1065 : 55 C.L.J. 528 : 33 P.L.R. 621 : 36 L.W. 7 : 9 C.W.N. 681 : (1932) M.W.N.817 : 63 M.L.T. 329(P.C.). Sir Dinshaw Mulla who delivered the opinion of the Judicial Committee in this case, pointed out that there is no definition of appeal in the Civil P. C., and added that: Their Lordships have no doubt that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a Subordinate Court is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent.

(2.) It is contended on behalf of the appellants that this observation covers the facts of the present case. I am unable to accept this. What their Lordships were dealing with at the time was an appeal which was irregular in form as not being an appeal against the decree of the Subordinate Judge but one against his judgment and what they decided was to overrule the view taken in such cases as Christiana Benshawn V/s. Benarasi Prasad 19 C.W.N. 287 : 22 Ind. Cas. 685 : A.I.R. 1914 Cal. 583 that the appeal contemplated in Art. 182, Limitation Act, must be an appeal in which the parties to the execution proceedings are directly interested and must be such as to imperial the integrity of the decree. Considerations of that kind do not arise here. What the appeal to the High Court imperilled was the order of the lower Appellate Court rejecting the application under Order XLI, Rule 21, after it had allowed the appeal in the suit and decreed the suit ex parte, but it is not the rejection of that application or the appeal from that rejection that is under execution. The appeal to the High Court was not intended to set aside any decision of the Subordinate Court except the rejection of the application under Order XLI, Rule 21. The learned Advocate for the appellants has also relied on another observation in Nagendra Nath's case 36 C.W.N. 803 : 137 Ind. Cas. 529 : A.I.R. 1932 P.C. 165 : 59 I.A. 283 : 60 C. 1 : Ind. Rul. (1932) P.C. 195 : (l932) A.L.J. 643 : 34 Bom.L.R. 1065 : 55 C.L.J. 528 : 33 P.L.R. 621 : 36 L.W. 7 : 9 C.W.N. 681 : (1932) M.W.N.817 : 63 M.L.T. 329(P.C.) that: It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage.

(3.) But the only question that could be considered to be sub juice between the parties while their appeal in the High Court was pending was not the decree under execution, but whether the appellants to the High Court had been duly served with notice of the appeal in the lower Court or had been prevented from sufficient cause from appearing when the appeal was called on for hearing. The observation of their Lordships of the Judicial Committee must, I think, be taken with the facts of the case before them, and does not seem to cast any doubt on the uniform current of decisions not only in this High Court but in all the other High Courts of the country as far as I am aware with the sole exception of Lawful Huq v. Sumbdudin Pattuck 8 C. 248 : 10 C.L.R. 143, a case which has been repeatedly dissented from. The other case referred to by the learned Advocate for the appellants is Abdulla Asghar Ali V/s. Ganesh Das 60 C. 662 : 142 Ind. Cas. 326 : A.I.R. 1933 P.C. 68 : 60 : I.A. 83 : 10 C.W.N. 183 : 37 L.W. 296 : (1933) M.W.N. 170 : Ind. Rul. (1933) P.C. 61 : (1933) A.L.J. 239 : 35 Bom. L.R. 337 : 64 M.L.J. 421 : 37 C.W.N. 412 : 57 C.L.J. 130 : 34 P.L.R. 335 (P.C.). The facts of that case and the point for decision in that case are entirely different from anything we have before us. But the learned Advocate has relied on Sir George Lowndes's observation that: Their Lordships think that, when an order is judicially made by an Appellate Court which has the effect of finally disposing of an appeal, such an order gives a new starting point for the period of limitation prescribed by Art. 182 (2) of the Act of 1908.