Girwal Raut vs Bigu Raut and Others

Das, J.—On the 21st March, 1921, the appellant recovered a decree against Suba Raut, Bilachni and Pancham Ojha. The decree was one for confirmation of possession of certain properties and for costs. Mr. Mitter has argued this appeal on the footing that the decree was a joint decree as against the judgment-debtors. As a matter of fact although the decree for costs was undoubtedly a joint decree, the other portion of the decree cannot be read as a joint decree.

There were three separate appeals on behalf of the three defendants whose names I have just mentioned. On 27th May, 1922, all these appeals were dismissed. Thereupon three separate second appeals were presented to this Court. On 1st December, 1922, Suba Raut''s appeal was dismissed for default. The other two appeals proceeded in the usual course; but were dismissed on 6th May, 1925. On 1st May, 1928, the present application for execution was filed; and it was at once met with a plea of limitation so far as Suba Raut is concerned. The learned District Judge has given effect to the plea and has dismissed the execution case against Suba Raut. The decree-holder appeals to this Court.

Article 182 prescribes a period of three years for the execution of a decree of this nature from the date of the final decree or order of the Appellate Court where there has been an appeal. The argument on be-half of Suba Raut is as follows : He says that there was an appeal to this Court on his behalf. An order was passed on 1st December, 1922, dismissing that appeal and the application for execution not having been presented within three years from the date of the dismissal of the appeal, an application for execution is obviously barred by limitation. Mr. Mitter contests the view presented on behalf of Suba Raut in the Court below. He relies upon certain decisions of the Calcutta High Court, of which I may mention two : the decision in Loke Nath Singh v. Gaju Singh 31 Ind. Cas. 426 : 20 C.W.N. 178 : 22 C.L.J. 333 and in Gopal Chander v. Gosain Das Kalay 25 C. 594 : 3 C.W.N. 556 (F.B.). In the first mentioned case the suit was for ejectment against two sets of defendants A and B. The suit was decreed against A on consent and against B upon contest, the result being embodied in one decree which did not define the respective shares of the two sets of defendants. B alone appealed which was not disposed of until 8th May, 1908. On 7th May, 1910, an application was made for execution of the decree against both sets of defendants and it was objected on behalf of A that the decree as against him having been passed on 17th September, 1903, the application was barred by limitation. The Court relying on the express words of Article 182, col. 3, Clause (2), Schedule I, Limitation Act, held that the application was not barred by limitation. Now that case is clearly distinguishable from this case; defendant A did not appeal from the compromise decree which was passed against him but B did appeal. Therefore, there was an appeal within the meaning of that expression as used in col. 3, Article 182 and, therefore, time did not begin to run until the date of the decree or order of the Appellate Court which was 8th May, 1908.

The other case on which ''reliance is placed is to the same effect. The plaintiff obtained a joint decree against the defendants for possession of Immovable property and damages on 21st May, 1886. Against that decree all the defendants except defendant No. 1 appealed; and on 2nd July, 1887, so much of the decree was reversed as made the appealing defendants liable for damages but was affirmed in all other respects. Subsequently a second appeal was dismissed by the High Court on 9th July, 1888.

The plaintiff applied for execution of the decree on 7th July, 1891. If time began to run from the date of the final decree which was 9th July, 1888, then the application was obviously within time; but it was contended on behalf of defendant No. i that so far as he was concerned, time began to run from 21st May, 1886. In dealing with this argument Maclean, C.J., said as follows:

For myself, I prefer the reasoning and the conclusion of the two learned Judges, who were in the minority in that case.

I may mention that His Lordship was dealing with the decision of the Allahabad High Court in Mashiat-un-nissa v. Rani 13 A. 1 : A.W.N. (1889) 207 (F. B.). His Lordship proceeded to say as follows:

and to read the language of Sub-section 2, Article 179, Schedule II to the Limitation Act, according to the ordinary signification of the words used. That article says that, where there has been an appeal the date of the final decree or order of the Appellate Court shall be taken to be the time from which the period is to begin to run. There is no such qualification in the article as is suggested by the majority of the Judges in the Allahabad case, and which must be read into the article in order to support their view, nor is there anything to lead me to suppose that any such qualification or modification was intended by the Legislature.

I entirely agree with the view of the Calcutta High. Court, and it seems to me that col. 3, Article 182, para. 2 means what it says, namely, time begins to run from the date of the final decree or order of the Appellate Court where there has been an appeal. Now in this case there was an appeal by Suba Raut. That appeal was dismissed for default on 1st December, 1922, and it seems to me that on the plain reading of para. 2, col. 3, Article 182, time began to run against Suba Raut from 1st December, 1922.

It was then contended that a dismissal for want of prosecution is not a final decree of an Appellate Court within the meaning Article 182, Clause (2), Limitation Act, and reliance was placed upon the decision of the Privy Council in Batuk Nath v. Munni Dei 23 Ind. Cas. 694 : 36 A. 284 : I.A. 104 : 18 C.W.N. 740 : 12 A.L.J. 596 : 19 C.L.J. 574 : 16 Bom.L.R. 360 : 27 M.L.J. 1 : 16 M.L.T. 1 : 1 L.W. 729 : (1914) M.W.N. 437 (P.C.) but the decision obviously does not support the contention of Mr. Mitter. Now in that case, the Subordinate Judge held that the period of limitation which was applicable to the case ran from the dismissal for want of prosecution of the appeal to His Majesty in Council and that consequently the application for execution was within time. But it was pointed out by the Judicial Committee that there was no order of His Majesty in Council dismissing the appeal. Their Lordships pointed out that under Rule 5 of the Order in Council of 13th June, 1853, an appeal stands dismissed without further order, if the appellant or his agent does not take effectual steps for the prosecution of the appeal. That being the position, it could not be said that there was a final decree or order of the Judicial Committee when an appeal was dismissed for want of prosecution, but so far as the Indian Courts are concerned the position is entirely different. There is undoubtedly an order of the High Court dismissing Suba Raut''s appeal on 1st December 1922.

In my judgment the view taken by the learned District Judge is right and must be affirmed. This appeal is dismissed with costs.

James, J.

I agree.