FAZL-UR-RAHMAN Vs. SHAH MUHAMMAD KHAN

JUDGEMENT

(1.) THE sole question raised in this appeal is whether an application for execution presented by the appellants is or is not barred by limitation. THE application was to execute two decrees which were passed on the 8 of March, 1901. Against these decrees appeals were preferred to this Court. When the appeals were called on for hearing the learned Counsel for the appellants informed the Court that he was unable to support the appeals, and they were accordingly dismissed, no costs being awarded to the respondents, as they were not represented. On this judgment decrees were passed by, this Court affirming the decrees of the lower Court. It is admitted that the appellants present application is within time, if time is reckoned from the date of the decrees of this Court, but would be barred by limitation if time be computed to run from the date of the decrees of the Court of first instance. THE lower Court has held that, as the appeals to this Court were not supported, time must be held to run from the date of the decrees of the Court of first instance, and has accordingly dismissed the application as barred by limitation. Against the order of the lower Court the present appeal has been preferred. In our judgment the appeal must succeed. It seems to us that the language of Art. 179 of Schedule II of the Limitation Act is perfectly clear and is in favour of the appellants contention. That article allows three years from the date of the decree or order, or, where there has been an appeal, from the date of the final decree or order of the appellate Court.. THEre was undoubtedly an appeal in the case before us, and a final decree was passed by the appellate Court. THE application is within three years from the date of the final decree. For the respondents reliance is placed upon two decisions of this Court in Hingan Khan v. Ganga Parshud (1876) I.L.R. 1 All. 898 and Fatal Husen V/s. Raj Bahadur (1897) I.L.R. 20 All. 124. In our opinion these cases are distinguishable from the present, as in the former the appeal was withdrawn, and the question which had to be dealt with was as to the time to be allowed for payment of pre-emption money. Moreover, the language of Art. 179 was not referred to. In the second of these, to which one of us was a party, the appeal abated, It appears that the decree- holder in that case appealed against one Hardayal, a judgment-debtor. Hardayal died, and the decree-holder failed to bring on the record his legal representatives. It was held that the only extant decree was the original decree of the Munsif. In the Full Bench case of Jeeyangar V/s. Lakshmi Bass (1907) 16 M.L.J. 893 the Madras High Court held that when an appeal is entertained and an order made by the Court to which the appeal is preferred which has the effect of finally disposing of the appeal, time for execution rung from the date of the order of the appellate Court. THE learned Judges in that case dissented from certain decisions of the Bombay High Court in which an opposite view had been taken. We agree with the opinion expressed by the Full Bench of the Madras High Court. If a judgment- debtor's appeal, as sometimes happens, is pending for upwards of three years, and if it were held that the appellant judgment-debtor, by withdrawing or declining to support his appeal, or by omitting to bring on the record the representatives of a deceased respondent, could, notwithstanding the fact that an appeal had been filed, cause time to run from the date of the original decree, it would in our opinion be going directly against the language of the Limitation Act and would open a door to fraud. We allow the appeal, and, setting aside the order of the lower Court, send back the case to that Court with instructions to re-admit the application under its original number in the register and dispose of it according to law. THE appellants will have the costs of this appeal. Other costs will follow the event.