NAGENDRA NATH BANERJEE Vs. AMBICA CHARAN CHAKRABARTY

JUDGEMENT

(1.) In this case, it appears that one Nagendra Nath Banerji has appealed from an order dismissing the application for execution of one Kartik Chandra Sen. This appeal cannot be sustained and must be dismissed with costs. Hearing fee two gold mohurs. No. 134.

(2.) In this case, an application for execution has been made by one Kartik Chandra Sen who is a sub-mortgagee of the decree of which execution is sought. The first question is the question of limitation. The lower Court has found that execution is time barred. The facts are these: The decree in question which appears to have been a final mortgage decree was passed on 10 October 1917. On 8 April 1919, on the application of the decree-holder that decree was amended. It was amended upon more than one point. It was amended in respect of interim interest; it was amended upon some questions of costs and there was further question of post-diem interest at six per cent upon which it was also amended by the trial Court. From that decree as amended, the judgment-debtor appealed and the learned District Judge modified the amended decree in this way that, while a part of the matter which had been added to the decree by way of amendment was retained, another part, namely, that relating to post-diem interest was set aside. From that decision of the District Judge an appeal was taken to this High Court which was dismissed on 24 July 1924.

(3.) Now, the petition for execution in this case was presented on 18 November 1925. The question is what is the terminus a quo from which time has to be computed under Art. 182, Schedule 1 to the Limitation Act of 1908. It seems reasonably clear that the date 10 October 1917, the date of the original decree cannot be the period of time from which limitation runs because that decree was modified in various ways by subsequent orders, and so to hold would be contrary to Clause 4, Art. 182. The next date which may be considered is 8 April 1919 on which date the decree was amended. It has been contended before us, that, on a strict interpretation of Art. 182, that really is the correct date. I am of opinion that that too cannot be the correct date because it is quite clear that, from that amendment or from the decree as amended on 8 April 1919. an appeal was brought and the decree was subsequently modified so that it ceased to be in all respects the test of the liability of the parties. The question, therefore, is whether the next date 21 January 1922 the date on which the District Judge modified the amended decree can be regarded as the date from which limitation runs. No doubt, it would be the date from which limitation would run but for the fact that an appeal was brought from that decree of the District Judge which appeal was dismissed on 24 July 1924. We have to consider whether it is true to say that the case of an appeal from an amended decree is different from the case of an appeal from any other decree so that, while it is clear law that an appeal from any other decree postpones the date from which limitation runs for execution purposes, an appeal from an amended decree has no such operation.