Aminuddin and Another vs Ramkhelawan Singh

Das, J.—This appeal by two of the judgment-debtors, Aminuddin and Moinuddin, sons of one Abdul Karim, deceased, arises out of an execution proceeding in respect of a decree for money obtained by the respondent decree-holder against the heirs of the said Abdul Karim, the decree being enforceable against the heirs to the extent of the assets of the deceased in their bands. I propose to indicate at once the questions which arise for consideration and then state the facts so far as they are relevant, before proceeding to a detailed consideration of these questions. The questions are: (1) what is the proper construction of a deed of gift, dated 5th January 1941, executed by Mt. Bibi Mariam, widow of Abdul Karim, in favour of the two appellants; (2) if on a proper construction the deed of gift aforesaid is a transfer of the widow''s right to unpaid dower and to retain possession in lieu thereof, is such right transferable; (3) if the present execution is barred by the principle of res judicata; and (4) if it is barred by time. The facts so far as they are relevant for the first two questions are stated in the succeeding paragraph, and I shall state the relevant facts for the remaining two questions while dealing with them.

The undisputed facts are that Abdul Karim executed a hundi in favour of the respondent firm, and died leaving his widow Bibi Mariam (being his first wife), two sons (the appellants before us) and two daughters, being his children from a second wife. The firm sued the aforesaid heirs of Abdul Karim, and obtained a decree for Rs. 6000 and odd plus interest, the decree directing that the heirs would be liable only to the extent of the assets of the deceased inherited by them. The decree was put in execution in Execution case No. 221 of 1935 against the said heirs, and several houses were sought to be sold. The widow Bibi Mariam objected to the execution on the ground that she was in possession of the properties of her husband, lawfully and without force or fraud, in lieu of her dower and was entitled to retain such possession until her dower debt, which was stated to be Rs. 40,000 and two gold mohurs, was paid. This objection prevailed, and in an appeal from the decision of the learned. Subordinate Judge this Court held that the dower debt was as claimed by the widow, who was entitled to retain possession of the properties until the dower was paid and it would be of no advantage to the decree-holder to direct that he be permitted to put the property to sale subject to the encumbrance of the dower debt. This was in 1938. Then, on 5th January 1941, Bibi Mariam executed a deed of gift in favour of the appellants, her two stepsons, in respect of one of the houses, the other houses having been transferred previously. In 1941 and then in 1944-45 the decree-holder again levied execution, and in the last execution case, No. 69 of 1945, out of which this appeal has arisen, the decree-holder sought to attach and sell the house the possession of which Bibi Mariam had given up in favour of the appellants as a result of the deed of gift aforesaid. The appellants have raised the objection that they are in possession of the house as donees and not as heirs of Abdul Karim; therefore, the house is not liable to be attached or sold in execution of the decree. They have also pleaded the bar of limitation. By his order, dated 25th May 1945, the learned Subordinate Judge has held that the present execution is not barred by limitation; he has further held, on the strength of certain decisions of this Court, that the widow''s right to retain possession in lieu of dower is not transferable, and the appellants are now in possession as heirs of Abdul Karim. It is against this order of the learned Subordinate Judge that the appeal is directed.

The way the case was presented before the learned Subordinate Judge did not lead him to a consideration of the question of the nature or proper construction of the deed of gift, dated 5th January 1941, and the learned Subordinate Judge appears to have proceeded on the assumption that the deed of gift conveyed to the donees the widow''s right to remain in possession of her husband''s property in lieu of her dower debt. The two decisions on which the learned Subordinate Judge has relied are reported in Ram Prasad Singh and Others Vs. Mt. Bibi Khodaijatul Kubra and Others, and Abdul Samad Vs. Alimuddin and Others, On these two decisions, the learned Sub-ordinate Judge held that the widow''s right was not capable of alienation, and the appellants had acquired no interest in the property by virtue of the gift from their step-mother. Dr. Qazi Nazrul Hasan appearing for the appellants has subjected this finding of the learned Subordinate Judge to very Revere criticism, and has contended that there are other decisions of this Court as well as of other High Courts in which the widow''s right to remain in possession in lieu of her dower debt has been held to be transferable. I shall presently refer to these decisions, as well as to the well-known decision of their Lordships of the Judicial Committee in (1925) 48 MLJ 667 (Privy Council) . I shall refer to those decisions not with a view to deciding the question if the widow''s right to retain possession in lieu of her dower is transferable or not; because in the view which we have taken of this appeal that question does not fall for decision in the present case. I shall refer to those decisions in support of my view (here I am speaking for myself personally) that if the question as to the transferability or otherwise of the widow''s right required decision in this case, I would have felt it necessary to refer this case to a larger Bench in view of the conflicting decisions on the subject and the doubt expressed by their Lordships of the Judicial Committee in Maina Bibi''s case AIR 1925 PC 68. I consider that the correct way of approaching this case is to decide first the nature of the gift made by the widow; in other words, to construe the deed of gift first in order to find out what the widow has given to her two stepsons. Before I consider that question, however, it is necessary to clear the ground by explaining the nature of the right which the widow has in her husband''s property for payment of her dower debt. This question has been the subject of several decisions of the Privy Council, and it may now be taken as settled that the dower ranks as a debt, and the widow is entitled, along with other creditors of her deceased husband, to have it satisfied on his death out of his estate; her right, however, is no greater than that of any other unsecured creditor, except that when she is in possession of the property of her deceased husband, having "lawfully and without force or fraud" obtained such possession in lieu of her dower, she is entitled as against the other heirs of her husband and as against the creditors of her husband to retain that possession until her dower is satisfied (see Ameeroon-Nissa and Ors. v. Moorad-oon-Nissa and Ors. 6 M.I.A. 211; Mt. Beebee Bachun v. Sheikh Hamid Hossein 14 M.I.A. 877; Hamir a Bibi and Ors. v. Zubaida Bibi and Ors. AIR 1916 P.C. 46 and (1925) 48 MLJ 667 (Privy Council) . There are a large number of Indian decisions on the question to which it is not necessary to make any reference. The right of the widow to retain possession of her husband''s estate in lieu of dower has given rise to many subsidiary questions on most of which there has been divergence of judicial opinion in the various High Courts of India at one stage or another. Some of the subsidiary questions are; (a) whether it is necessary, to entitle the widow to retain possession of her husband''s property, that the possession should have been obtained by her not only "lawfully and without force or fraud," but also with the express or implied consent of the husband or his other heirs (see Beeju Bee v. Syed Moorthuja Sahib and Ors. AIR 1920 Mad 666 ., and the cases there cited); (b) whether the right of the widow to hold and retain possession is a mere personal right and, therefore, not transferable by sale, gift or otherwise (see the observations in Hadi Ali v. Akbar Ali 20 All. 262; Muzaffar Alli Khan and Ors. v. Parbati and Anr. 29 All. 640 , and the recent decision of this Court in Shaikh Mohammad Zobair Vs. Mt. Bibi Sahidan and Others, and (c) whether the right of the widow is of the nature of property or an actionable claim which is both heritable and transferable (see the observations in M. Amir Hasan Khan Vs. H. Mohammad Nazir Hasan and Another, ; Abdul Wahab Khan Vs. Mushtaq Ahmad Khan and Others, and the cases cited therein). Fortunately for us, these questions need not be decided in this case, in the view which we have taken of this appeal. It is sufficient to state that it is now settled that the right of the widow is essentially different from that of a mortgagee (usufructuary or other); that the right is not a lien or charge in the strict sense of the term. It is also well settled that the right to hold possession does not give the widow any title to the property: the title to the property is in the heirs including, of course, the widow. The widow has, therefore, no right to alienate the property except to the extent of her own share, and if the widow gives up possession, she loses her right to remain in possession. These propositions are now well settled by the decision in the (1925) 48 MLJ 667 (Privy Council) where their Lord, ships have made the following observations regarding the right of the widow to assign both her dower debt and her right to hold possession of her husband''s estate until that debt was paid:

It is doubtful whether she could have done either of these things but however that may be, it is dear she, in fact, never purported or attempted to do either of them. On the contrary, on those deeds she describes herself as the absolute owner of the property of her deceased husband, and purports to convey that absolute ownership to her donees, There is no ground for the contention, if it has been really put forward, that because these deeds fail to effect a transfer of the absolute interest with which they purport to deal they operate to transfer the widow''s dower debt and her right to hold possession of the lands till that debt is paid. By giving up the possession of the lands, as in her deeds she alleges she has done, she has undoubtedly lost her right to hold the possession of them.

I now proceed to examine the deed of gift dated 5 January 1941, in the light of the settled principles referred to above as respects the right of a Mahomedan lady to hold and retain possession of her husband s estate in lieu of her dower debt. In the very first page of the document the gifted property is mentioned as "one kita 16 annas house together with the land and all the materials appertaining thereto situate in Tari Mahala, one of the quarters of the town of Arrah". The value of the gifted property is mentioned as Rs. 700 only, namely, the value of the house. After mentioning the reasons for executing the deed of gift, it is mentioned as follows:

Therefore, I, the executant, have felt a hearty desire to gift away the house specified below to the aforesaid persons in lieu of their faithful service rendered to me.

Then follows a clause which says that the executant in the enjoyment of proper senses, without any pressure and coercion, etc., gave away in gift the entire right to realize the dower debt in respect of the entire one kita house together with the land and materials appertaining thereto valued at Rs. 700. It is further stated that the house was owned and possessed by the executant without anybody''s interference or co-partnership in lieu of the dower debt. Then occurs a very significant statement which I must quote in full:

It is requisite that the claimants-donees should enter upon possession of the gifted property as absolute proprietors like me in my place, and use it in any manner they like, and get their names recorded in the Khas Mahal and Municipal office and wherever it may be necessary. All the rights and title which, I, the executant, had in the gifted property, have, from this day forward, passed on the claimants.

Then follow the details of the house in a schedule. It is a well known principle of construction that an instrument or document must be construed as a whole, and that construction must be put upon it which will be a reasonable one and will give effect to all the parts of it. I forbear to cite authorities in support of this well-known principle, lest I should lay myself open to the charge of pedantry. I need only refer to the decision of their Lordships of the Judicial Committee in Deputy Commissioner of Rae Bareli v. Lal Rampal Singh 12 I.A. 1 given so far back as 1884, Applying that test to the construction of the deed of gift, it is clear to me that the document really purported to transfer the property itself, the absolute interest of the widow in the house as the document puts it. There is no mention in the document of any transfer of the widow''s right to retain possession till her dower debt is paid. The document clearly states that it is the house which is being gifted away and that the donees will have the same absolute interest as the donor had in the property. Dr. Qazi Nazrul Hasan has laid great emphasis on that part of the document which says that the executant gave in gift the entire right to realize the dower debt, and has contended that this shows that the right to realize the dower debt was being transferred. It is worthy of note, however, that the clause referred to by Dr. Qazi Nazrul Hasan is limited by the words which follow the clause, namely, "in respect of the one kita house together with the land and materials, etc. valued at Rs. 700". It is also worthy of note that in the grounds of appeal preferred by the appellants the first ground states as follows:

For that what was transferred under the deed of gift, dated 5th January 1941, was the security, not the dower debt itself the transfer of security being a valid) transfer, the order under appeal is illegal.

I do not wish to suggest for one moment that in construing the document the grounds of appeal should be taken in aid. I am mentioning the ground of appeal in order to show that at the time when the appeal was filed, the suggestion on behalf of the appellants was that the deed of gift in their favour was not a transfer of the dower debt--a suggestion which is exactly opposite of what Dr. Qazi Nazrul Hasan now contends. If the document purported to convey the right to realize the dower debt, one would hardly expect Rs. 700 to be mentioned as the value of the gifted property. In my judgment, the deed of gift as a whole shows beyond doubt that the widow thought, wrongly no doubt, that she was the absolute owner of the house, and she purported to give away that house as absolute owner to her step sons. On this construction of the deed of gift the present case is fully covered by the decision of their Lordships of the Judicial Committee in (1925) 48 MLJ 667 (Privy Council) . There also, the deeds of gift purported to convey absolute ownership to the donees. Their Lordships said that there was no ground for the contention that because the deeds failed to effect a transfer of the absolute interest with which they purported to deal, they operated to transfer the widow''s dower debt and her right to hold possession of the lands till that debt was paid. Their Lordships further observed j that by giving up the possession of the lands the widow undoubtedly bad lost her right to hold the possession of them. In the case before us also, Bibi Mariam purported to convey absolute ownership of the house to her sons. She could not do so in law, and the deed of gift cannot be said to operate to transfer the widow''s dower debt and her right to hold possession till that debt is paid. As soon as the widow gave up possession of the house, she lost her right to hold possession of it. The two appellants are undoubtedly some of the heirs of deceased Abdul Karim. As soon as they got possession of the house, their possession was as heirs of Abdul Karim and not as donees under the deed of gift aforesaid.

Dr. Qazi Nazrul Hasan has referred us to a large number of decisions. He has particularly referred to five decisions of this Court in which it has been held that the widow''s right to hold possession until her dower debt is paid is transferable: there has been some conflict whether it is transferable with or without the dower debt, a conflict which need not be gone into the present case, as in our view the deed of gift does not purport to transfer either the right to hold possession till the dower debt is paid or the dower itself. The five decisions on which Dr. Qazi Nazrul Hasan has relied are: Seikh Abdur Rahman v. Seikh Wali Mohamad A.I.R.1923 Pat. 72, Mt. Bibi Makbulunnissa and Anr. v. Mt. Bibi Umatunnissa and Anr. AIR 1923 Pat. 33; Nabijan v. Mt. Sahifan and Ors. AIR 1923 Pat. 153 ; Abul Haque and Others Vs. Mt. Tamizan and Others, and Mt. Sogia and Ors. v. Mt. Kitaban and Ors. A.I.R.1928 pat 224 . In Musammat Bibi Makbulunnissa and Another Vs. Musammat Bibi Umatunnissa and Another, Das, J. as he then was, pointed out that if the widow purported to sell the property, and not the security only, the sale was utterly ineffectual so as to confer any title on the vendee. He went on, however, to say that though the vendee took no title to the property by virtue of the sale, he was entitled to retain possession of the property, if he was put in possession thereof, not by virtue of the deed of sale, but because, so long as the debt remained unsatisfied, the heirs-at-law could not claim to be put in possession of the property, and the widow herself would be bound to make good her representation to the vendee to the extent of such interest as she could lawfully transfer. That part of the judgment which says that the sale was utterly ineffectual so as to confer any title on the vendee, is undoubtedly still good law; the second part of the judgment which says that the vendee would be entitled to retain possession of the property not on the deed of transfer, but on the ground that the widow her. self would be bound to make good her representation to the vendee, is of doubtful accuracy now in view of the Privy Council decision in (1925) 48 MLJ 667 (Privy Council) , where their Lordships have observed that by giving up possession of the land the widow loses her right to hold possession, and a document which fails to effect a transfer of the absolute interest, cannot operate to transfer the widow''s dower debt and her right to hold the possession of the lands till that debt is paid. The decision in Mt. Makbulunnissa''s case A.I.R 1923 Pat. 33 was followed in Abul Haque and Others Vs. Mt. Tamizan and Others, and in Mt. Sogia and Ors v. Mt. Kitaban and Ors. A.I.R.1928 Pat. 224 . In Abdur Rahman Vs. Wali Mohammad, it was pointed out that the widow had no power of disposition over the property. That was also a case in which the instrument of transfer purported only to transfer the proprietary interest and all rights, title and interest which the vendor had in the vended property: there was not a word, from first to last, relating to any transfer of the dower debt. Then, it was pointed out that the lien on the property which gives the widow the right to possession until the debt has been discharged was not an interest in the property which could be severed from the right to dower and transferred as a separate interest. It was held in that case that a transfer by the widow of her right to possession would enure for her lifetime only, unless the dower debt was also transferred. Dealing with the contention that the greater right included the lesser right, their Lordships referred to Musammat Maina Bibi and Others Vs. Chaudhari Wasi Ahmad and Others, , the case which ultimately went to the Privy Council and was decided in (1925) 48 MLJ 667 (Privy Council) , and repelled the contention that because the widow transferred the whole property believing herself to be owner of it, she could, in the absence of clear and definite words be taken to have transferred also her dower debt and her right to retain possession. It is clear, therefore, that even on the decisions relied on by Dr. Qazi Nazrul Hasan the widow is not entitled to transfer the property, and if she does so, the transferee gets no title, and as soon as the widow gives up possession, she loses her right to remain in possession in lieu of her dower debt. As against the five decisions on which Dr. Qazi Nazrul Hasan has placed reliance, some of which, though later in date than (1925) 48 MLJ 667 (Privy Council) , curiously enough do not refer to it, there are three recent decisions of this Court which are against Dr. Qazi Nazrul Hasan''s contention. I have already referred to Shaikh Mohammad Zobair Vs. Mt. Bibi Sahidan and Others, , where the right of the widow to remain in possession in lieu of her dower debt was held to be a right confined to her personally, and therefore, not transferable under Clause (d) of Section 6, T.P. Act. I should observe here that though it is a Bench decision, Meredith, J. reserved his opinion upon the question whether a Mahomedan widow''s right to retain possession as security for her dower debt is transferable either with or without the dower debt. In this case, the transfer was held to be a sale and invalid for want of registration. The contention that the transferees had a right to remain in possession of the property so long as the dower debt was not paid, was repelled on the decision of their Lordships of the Judicial Committee in (1925) 48 MLJ 667 (Privy Council) , though Shearer J. expressed the further opinion that the widow''s right was confined to her personally. Speaking for myself, I find it difficult to understand how the right can be held to be confined to the widow personally, when it is heritable. The decision in Shaikh Mohammad Zobair Vs. Mt. Bibi Sahidan and Others, , so far as it says that an instrument purporting to convey an absolute interest in the property is ineffectual to confer title to the transferee, follows the decision of the Privy Council and earlier decisions of this Court, and is of binding authority; so far, however, as it says that the right is confined to the widow personally, it is open to the comment that the other member of the Bench reserved his opinion on that question. In Ram Prasad Singh and Others Vs. Mt. Bibi Khodaijatul Kubra and Others, , the widow in possession in lieu of her dower debt granted a simple mortgage of the properties of which she was in possession. It was found that what the widow evidently intended to make clear was that she was transferring her proprietary right in the villages whatever that might be and she was stating as a fact that she was in possession and occupation also of those villages as absolute owner in lieu of her dower debt. Manohar Lall J. with whom Varma J. agreed, then went on to consider the case on the assumption that his construction of the document was wrong. He referred to the decision of the Privy Council in (1925) 48 MLJ 667 (Privy Council) , and the earlier decisions of this Court, and came to the conclusion that the earlier decisions of this Court no longer correctly interpreted the Mohamedan law on the subject after the pronouncement of their Lordships of the Judicial Committee in (1925) 48 MLJ 667 (Privy Council) . Dr. Qazi Nazrul Hasan has rightly pointed out that the decision in (1925) 48 MLJ 667 (Privy Council) , merely expresses a doubt whether the widow can assign her dower debt or right to hold possession of her husband''s estate until that debt is paid, and it does not purport to overrule those decisions which say that the right of the widow to hold possession of her husband''s estate can be transferred either with or without the dower debt. As I have already stated, had the fate of this case depended on a decision of the question of the transferability or otherwise of the widow''s right to remain in possession in lieu of her dower debt, I would have felt it necessary to refer this case to a larger Bench; for, I do not think that the Privy Council decision in (1925) 48 MLJ 667 (Privy Council) , can be taken to have overruled the earlier decisions on this question. As I have already pointed out, the Privy Council decision in (1925) 48 MLJ 667 (Privy Council) , can be taken to have laid down overruling some of the earlier decisions to this extent only, namely, that a transferee from a Mahomedan widow under a deed of transfer which purports to convey absolute ownership, acquires no title, and if the widow gives up possession of the property, she loses her right to remain in possession and the heirs-at-law come in at once. I must say, with due respect that I am not prepared to go so far as to hold that the decision in (1925) 48 MLJ 667 (Privy Council) , has rendered all the earlier decisions totally incorrect. In Abdul Samad Vs. Alimuddin and Others, which was a case of sale, it was held that what was transferred was the proprietary interest and the transferee acquired no title beyond the widow''s title to 1/12th share.

I do not think any useful purpose would be served by referring in detail to decisions of other High Courts on the question, though Dr. Qazi Nazrul Hasan has taken us through a large number of those decisions. In Ramija Bibi and Another Vs. Sharifa Bibi and Others, , Leach C.J. pointed out that an expression of doubt was a different thing from overruling, and the judgment in (1925) 48 MLJ 667 (Privy Council) , could, in no sense, be said to have overruled the decision of the Full Bench of the Madras High Court in Beeju Bee v. Syed Moorthuja Sahib and Ors. AIR 1920 Mad. 666 ., The same view was expressed in Cooverbai Nasarwanji Bulsara Vs. Hayatbi Budhanbhai, . It is clear, however, that after the decision of their Lordships of the Judicial Committee in (1925) 48 MLJ 667 (Privy Council) , there is No. room for any difference of opinion as to the effect of a deed of transfer which purports to convey absolute ownership, as distinct from the dower debt and the widow''s right to hold possession till that debt is paid. The conclusion at which I have arrived in this case is that the deed of gift in favour of the appellants purports to convey absolute ownership, and is as such ineffectual to convey any title to the appellants as donees. The appellants are now in possession of the house as heirs of Abdul Karim, and the respondent decree-holder is entitled to execute His decree against the appellants in respect of that house.

The question of res judicata can, I think, be disposed of very shortly. The contention is that in the earlier execution case, No. 221 of 1935, the objection of the widow was allowed and execution was dismissed in respect of the houses of which the widow was then in possession in lieu of her dower, and therefore, the present execution case is barred by the principle of res judicata. This point is also covered by the authority of the decision in (1925) 48 MLJ 667 (Privy Council) . A similar question was raised there, and it was pointed out that the res that was adjudicated in the earlier suit was different from that in the later case. All that was decided in the earlier execution case was that the widow was entitled to retain possession as long as her dower debt was not paid up. That was no decision that the right of the heirs was extinguished for all time to come, or that they would have no right to recover at some future time and under wholly altered circumstances. As long as the widow remained in possession, she was entitled to retain possession until her dower debt was paid. If, however, she voluntarily gave up possession, and the heirs took possession, they would at once become liable under the decree passed against them, I do not think the present execution is barred by the principle of res judicata.

I now take up the last question, namely, that of limitation. The facts with regard to this question are the following. After Execution case No. 221 of 1935 which ended in 1937-38 there was another execution in 1941 (Execution case No. 77 of 1941) which was struck off on 22nd July 1941. It was not alleged that the second execution of 1941 was beyond time or not in accordance with law. Then, on 21st July 1944 within three years from the final order in the second execution case, the third application for execution was made. There were some defects in this application, and on 7th July 1945, the Court recorded the following order:

After hearing the learned pleaders on either aide the learned pleader on behalf of the decree-holder submitted that he may be allowed to withdraw the execution petition. The execution petition is accordingly allowed to be withdrawn. The objection u/s 47, Civil P.C. is, therefore, not pressed and dismissed without adjudication. This will not prejudice the right of the objector to agitate it afresh when occasion arises.

On 13th July 1945, the execution petition was taken back, the defects were removed and it was re-filed on the same day. The contention before us is that the withdrawal of the application was not "a final order" as contemplated by Article 182(5), Limitation Act, and, therefore, the application, re-filed on 13th July 1945, was barred by time. In my opinion, this contention is without substance. Learned Counsel for the respondent, decree-holder has referred to Order 21, Rule 17, Civil P.C., which allows defects in an application for execution to be remedied. Sub-rule (2) of that rule says that when an application is amended under the provisions of Sub-rule (1), it shall be deemed to have been an application in accordance with law and presented on the date when it was first presented. The third application for execution in this case was filed on 21st July 1944, which was within time. It was re-filed on 13th July 1945, after certain, amendments had been made. I am of the view that the application as amended should be deemed to have been filed on 21at July 1944, and, therefore, within time. Learned Counsel for the appellants has referred to the decision in R.T. Kesavuloo v. Official Receiver, West Tanjore and Anr. AIR 1936 Mad. 613, where it has been pointed out that under Article 182, Clause (5), as it stood before the amendment of 1927, if an execution was returned, the failure to represent a petition did not affect the rule that the statute ran from the filing of the petition. Under the amended clause, however, limitation runs from the date of the "final order," and an order returning a petition is not a "final order" within the meaning of Clause (5) of Article 182. The facts of the case before us are, however, different. The same application has been re presented after certain defects had been removed, with the permission of the Court. This application must be deemed to have been filed on the day when it was first presented. If, as is contended by learned Counsel for appellants, the order of the learned Subordinate Judge which I have quoted above is not to be taken as permitting to remove certain defects in the application, then the order of the learned Subordinate Judge must be construed as an order dismissing the application; it was not a mere order returning the application as in the Madras case. In that view of the matter, the order of the learned Subordinate Judge permitting the application to be withdrawn and dismissing an objection u/s 47, Civil P.C. would be a "final order," as it finally and judicially terminated the execution case then pending before the learned Subordinate Judge. The decree-holder would then be entitled to a fresh period of limitation from the date of that order. I am, however, of the opinion that the proper effect of the order of the learned Subordinate Judge was to allow the decree-holder to remove certain defects in the application, and the application must be taken to have been filed on the day on which it was first presented. In Thakur Pershad v. Sheikh Fakir-Ullah and Anr. 22 I.A. 44, their Lordships of the Privy Council were dealing with a case where an application in execution of a decree was struck off for default on the decree-holder''s application: it was held that it afforded a fresh starting point for reckoning limitation. Their Lordships held that Section 647 of the old Civil P.C. (corresponding to Section 141 of the present Code) did not prohibit an application for execution where a former application to that effect had been withdrawn without liberty to present a fresh one. The suggestion that Section 373 of the old Code would apply to execution proceedings by force of Section 647 was not accepted. In my judgment, the learned Subordinate Judge has correctly held that the application is not barred by time.

For the reasons given above, the appeal fails, and is dismissed with costs.

Imam J

I agree.