KRISHNA KANT PRASAD Vs. RADHEY SINGH

JUDGEMENT

(1.) This is an appeal by the decree-holders whose application for execution has been dismissed on the ground of limitation. It appears that the decree which is sought to be executed was passed by the trial Court on 10 October 1931. From this decree an appeal was preferred before the District Judge on 11 January 1932 on what appears to have been insufficient court-fee and the learned District Judge, after issuing notice to the respondent and hearing the parties, dismissed the appeal on 19 April 1932.

(2.) The present application for execution being made by the decree. holders on 5 April 1935, the Court of first instance, before whom the plea of limitation was raised on behalf of the judgment debtors, held that the order of the District Judge dated 19 April 1932 rejecting the appeal was a decree within the meaning of Section 2(2), Civil P.C., and that accordingly time would run from that date under Art. 182(2), Lim. Act. This decision was however reversed by the learned District Judge on appeal who held that time would run from the date of the original decree and the execution was barred. The decree holders have now preferred this second appeal.

(3.) Now it appears that the attention of the learned District Judge was not drawn to the decision of the Judicial Committee in Negendra Nath Dey V/s. Suresh Chandra Dey A.I.R.1932. P.C. 165 wherein upon a construction of Art. 182(2) which admittedly governs this case it was held that an application by a party to an Appellate Court to set aside a decree or order of a Court subordinate thereto is an "appeal" even though (a) it is irregular or incompetent, or (b) the persons affected by the application to execute were not parties and did not imperil the whole decree or order. Sir Dinshah Mulla who delivered the opinion of the Judicial Committee in that case, after dealing with the facts of that) case, observed as follows: Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the Article: where there has been an appeal, time is to run from the date of the decree of the Appellate Court. There is, in their Lordships opinion no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what (hey say.