DUVOOR VENKATARAMA REDDI (DIED) Vs. GOMATAM DODDACHARIAR

JUDGEMENT

(1.) The point for decision in this appeal is one of limitation. The plaintiff applied for a final decree in a redemption suit. The preliminary decree was obtained on 29 June, 1918, the application for final decree was made on 22nd October, 1923, more than three years after the preliminary decree. The preliminary decree, however, was taken upon first appeal and second appeal. The first appeal was disposed of on 29 November, 1919 and the second appeal on 8 February, 1922. The application is, therefore, beyond three years of the first appeal decree and within three years of the second appeal decree. The original court has held that it was in time, the Lower Appellate Court that it was not, and the plaintiff appeals.

(2.) The Art. applicable is Art. 181 and the terminus a quo is the date when the right to apply accrued. The plaintiff's contention is that the preliminary decree now is the High Court's decree in second appeal and that his right to apply accrued only on the date of that. The respondent contends that as the High Court decree merely dismissed the second appeal the right to apply accrued on the date of the first appeal decree. All that we know about the High Court proceedings is its judgment which runs, "No question of law. The second appeal is dismissed with costs." The fact that it was dismissed with costs indicates that the second appeal was admitted and notice given to the other side, and that the other side appeared and was ready to argue the case if called upon.

(3.) It is contended by the respondent that, if the High Court had gone into the merits of the appeal and dismissed it, the right to apply would accrue only on the date of the High Court decree. But it is contended that the High Court could not have gone into the merits because it merely says "no question of law", and that as it has held that there was no question of law it held in effect that the second appeal was not competent, since a second appeal can only be maintained on a question of law. But the fact that the appeal was admitted as an arguable appeal indicates to my mind that it was entertained as competent. The competency of an appeal does not depend on the final decision in the appeal. If the High Court does not dismiss it in limine, but thinks there is an arguable question of law, then the appeal is competent, and it is because it is competent that notice is given to the other side and the appeal posted for hearing both sides. The decision of the High Court was, therefore, a decision after hearing the merits of the case discussed on both sides, and its, decree, therefore, superseded the decree of the Lower Appellate Court.