Bhimanna and Others vs Elhara Basappa

This is a second appeal which has arisen in execution proceedings. The judgment-debtor is the appellant before us. The solo point to be determined in this case is as to whether the decree holder''s application for execution is within time. Elhara Naganna, the father o� the respondent before us, filed an application for foreclosure on 24th Mehar 1345 Fasli. The facts prior to this application are not necessary for the decision of the appeal now before us. This application for foreclosure was not granted but only a money decree was passed in favour of Elhara Naganna, He appealed to the Sadar Adalat against this order and the Sadar Adalat dismissed the appeal. Against this order the decree-holder appealed to the High Court, when the matter was before the High Court, the appellant decree-holder died but the application by his legal representative was filed after the period of limitation had expired. The High Court, on an application made, set aside the abatement applying Section 5, Limitation Act. Against this order setting aside the abatement of the appeal the judgment-debtor appealed to the Judicial Committee. The Judicial Committee differed from the High Court and held that the appeal which had abated could not be set aside. It allowed the appeal and held that inasmuch as the application for bringing on record was filed beyond the period of limitation, the appeal abated. This order was delivered on 14th Azur 1355 Fasli. After this order of the Judicial Committee, the case came before the High Court and in view of the order of the Judicial Committee the High Court passed the following" order on 13th Mehar 1356 Fasli: "Appeal be recorded"

After these proceedings were over, the-son and legal representative of the original decree-holder filed an application for execution on 28th Khurdad 1357 Fasli. In reply to this-application, it was urged by the judgment-debtor that this application was filed after the expiry of three years from the date of the final order from which limitation would commence and that therefore the application for execution was barred by limitation. The executing Court and the lower appellate Court overruled the objection and directed execution proceedings. Against the order of the lower appellate Court, the present appeal has been preferred by the judgment-debtor. It was argued by the learned advocate for the appellant that the last order passed by the High Court on 13th Mehar 1856 Fasli could not be construed as a final order within the meaning of Article 160, Limitation Act, because that was only an order carrying out the order of the Judicial Committee. The High Court did not purport to give any decision on the merits. We are unable to agree with this argument of the advocate for the appellant. The words used in Article 160, Sub-section (2) Limitation Act, corresponding to Article 182, Sub-section (2), Indian Union Limitation Act donot warrant such an interpretation. Sub-clause (2) of this article provides for a fresh starting point of limitation for execution in case where there has been an appeal. In this case after the High Court passed the order setting aside the abatement and posting the case for arguments on the merits, the judgment debtor appealed to the Judicial Committee and the matter again became sub judice. There are no words in Sub-clause (2) of Article 160 restricting it to only appeals against the decree sought to be executed. The appeal contemplated in this clause would cover also an appeal which is capable of affecting the decree sought to be executed. As was observed by their Lordships of the Privy Council in the case of AIR 1932 165 (Privy Council) .

It is at least the intelligible rule that so long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage.

Decidedly, in the ease before us, the very matter of the decree wag in a state of suspense by reason of an appeal having been filed by the judgment-debtor to the Judicial Committee and therefore actually the final order was passed by the Judicial Committee. The decree-holder was not in a position to know as to whether his decree was capable of execution or not till the appeal wag disposed of by the Judicial Committee. Further the decree-holder had obtained an order in the High Court in his favour and if this order had remained without its being imperiled by reason of the appeal to the Judicial Committee probably it might be argued that that date of the order of the High Court, setting aside the abatement namely 20th Sehrewar 1357 Fasli would be the starting point of limitation. There in no room for such an argument in this case. We are, therefore, of opinion that the words of Clause 2 of Article 160 would cover any appeal which is capable of affecting the decree or order sought to be executed. We are fortified in this view by the judgment of the Full Bench of this High Court, reported in 40 Deccan Law Reports 3. We are bound by the decision of the Full Bench so far as this High Court h concerned. In Abdullah Ashgar Ali v. Ganesh Das, AIR (20) 1933 PC 63 , the Privy Council held that an order of an appellate Court declaring an appeal could have abated and refusing to set aside the abatement was a final order within the meaning of Clause (2) of Article 180. We follow this ruling also and hold that the order of the Judicial Committee dated 14th Azur 1355 Fasli is the date from which the period of limitation would be computed for the purposes of Article 160, Clause 2. We hold that the order refusing to set aside the abatement and declaring that the appeal had abated is a final order within the meaning of Article 160, Sub-clause 2, Limitation Act. For all these reasons we are of opinion that this appeal should be dismissed. The appeal is, therefore, dismissed with costs.