Jagannath Bal vs Sadhu Charan Bal

Rowland, J.—This is an application against a decision of the District Judge of Cuttack in which he held that an application to execute a decree was barred by time u/s 48, Civil P.C., having been presented more than 12 yeans beyond the date of the decree sought to be executed. The relevant dates are that a decree was obtained on 23rd November 1928, that an application in revision to the High Court was summarily rejected on 4th May 1929 and that the application to execute the decree has been presented on 12th February 1941. I am told there have been intermediate applications to execute the decree between which in no case has a period of three years or more expired so as to bar the execution under Article 182 of the schedule to the Limitation Act. The point for determination is whether the starting point for the 12 years'' period in Section 48 is to be reckoned from 23rd November 1928 or from 4th May 1929.

The Subordinate Judge had permitted the decree-holder to count time from 4th May 1929 relying on a decision of this Court in Ram Ranvijaya Prasad Singh v. Kesho Prasad Singh AIR 1938 Pat. 401. In that case the question was whether the relevant date was the date of the decree of the original Court or the date of the final order of the appellate Court dismissing the appeal from the original Court''s decree. It was held that time ran from the date of the appellate Court''s order. The ground given was that the decree, holder was entitled to count time not from the starting point mentioned in Section 48 but from the starting point mentioned in Article 182(2) of the schedule to the Limitation Act. The District Judge held that a mere perusal of Section 48 and of Article 182 showed that Section 48 had to be applied according to its terms and construed independently of any considerations arising upon Article 182. He relied on a Pull Bench decision of the Madras High Court in Veear Ramchandra Rao v. Parasuramayya AIR 1940 Mad. 127 and on a Division Bench ruling of the same High Court in Nagalinga Chetty v. Srinivasa Iyengar AIR 1941 Mad. 477.

In the former case the question was whether time ran from the date of the judgment or from the date on which the decree was subsequently amended. The latter case was one in which there had not been an appeal from the original decree but an application in revision so that the facts were almost on all fours with those at present under consideration. He also referred to a decision of the Patna High Court in Mt. Dulhin v. Harihar Gir AIR 1939 Pat. 607 in which some of the reasoning of the Patna decision of 1938 was doubted. In Mt. Dulhin v. Harihar Gir AIR 1939 Pat. 607 as in the Full Bench decision of the Madras High Court, the question was whether time u/s 48 ran from the date of the original decree or from the date of an amended decree and it was held that the matter had to be considered on the terms of Section 48 itself and not of any article of the Limitation Act, this view being supported by authorities in Bombay, Allahabad, Calcutta (approved by Privy Council), Lahore and Lucknow.

If the principle on which all those decisions are founded is correct, then the decision in Ram Ranvijaya Prasad Singh v. Kesho Prasad Singh AIR 1938 Pat. 401 proceeds on a line of reasoning which cannot be supported, but that is not the same as to say that the case was wrongly decided, for its decision might have been approached from a different angle. Assuming that the starting point for Section 48 must be "the date of the decree" it would be for consideration whether the ''decree sought to be executed'' was the original decree or that of the appellate Court, for if the first Court''s decree was superseded by an appellate decree then by its terms Section 48 would give the decree-holder the right to count time from the latter and not from the former. Where the first Court''s decree has been modified in appeal, the Calcutta High Court held in Mahomed Mahdi Bella v. Mohini Kanta Saha (07) 34 Cal. 874 that the appellate decree is the decree to be executed and the correctness of this decision has never been doubted, and in the Privy Council the same was held in Bhup Indar Bahadur Singh v. Bijay Bahadur Singh (01) 23 All. 152 their Lordships observing:

The Court is now executing not the District Judge''s decree of 1887 but the Queen''s order of 1895 which by affirming the District Judge''s decree has adopted its terms and has carried on their effect down to a later date.

It has, however, been held that the decree to be executed is not that of the appellate Court but that of the original Court when the appeal has been rejected for failure to give security for costs, Lekha v. Bhauna (95) 18 All. 101 or dismissed for non-appearance, Rifaqat Husain Vs. Musammat Bibi Tawaef , Shyam Mandal v. Satinath Banerjee AIR 1917 Cal. 728, where reliance is placed on the express provision of Section 2(2), Civil P.C., that any order of dismissal for default is not a decree. The Privy Council similarly held that the dismissal for default of an appeal to His Majesty in Council did not amount to a new decree superseding the High Court''s decree, Batuk Nath v. Mt. Munni Dei AIR 1914 P.C. 65 and Abdul Majid v. Jawahir Lal AIR 1914 P.C. 66. When an appeal has been fully heard and has failed on merits, the appellate judgment merely, affirming the decision of the trial Court, we have the position considered in this High Court in Jowad Hussain v. Gendan Singh AIR 1922 Pat. 205 where Das J. with some hesitation held that the final decree in the suit was the decree of the appellate Court. Adami J. concurred. The Privy Council affirmed this finding in Jowad Hussain v. Gendan Singh AIR 1926 P.C. 93 referring with approval to a decision of the Allahabad High Court in Gajadhar Singh Vs. Kishan Jiwan Lal and Others, . The latter was a case in which the first Court''s order was modified after hearing parties, but their Lordships in the Privy Council case adopted Tudball J.''s observations as generally applicable. He had said:

When the Munsif passed the decree, it was open to the plaintiff, or the defendant, to accept that decree or to appeal. If an appeal is preferred, the final decree is the decree of the appellate Court of final jurisdiction. When that decree is passed, it is that decree, and only that which can be made final in the cause between the parties.

Tudball, J.

In that case had no occasion to draw the distinction between appeals in which a decree is not passed and those in which there is an appellate decree; that question was not before him. If stress is laid on the words "when that decree is passed" his observations do not negative the distinction I have drawn. The criterion of a decree is not whether one of the forms in Appx. D, Civil P.C., has been drawn up but is to be found in the definition of decree in Section 2; this was the test used in Rifaqat Husain Vs. Musammat Bibi Tawaef and in Shyam Mandal v. Satinath Banerjee AIR 1917 Cal. 728. The essential requirement is that there has been an adjudication determining the rights of parties. There is such an adjudication when an appeal is dismissed under Sub-rule (1) of Order 41, Rule 11, and the result is the decree, because such a dismissal affirms that the rights of parties have been correctly decided by the lower Court, it was so held in Altab Ali v. Jamsur Ali AIR 1926 Cal. 638 following previous decisions of the Calcutta, Allahabad and Madras Courts, with the remarks that the question "does not seem to admit any argument at this time of the day." In the case before me the first Court''s order was non-appeal-able, but an application in revision was presented to the High Court.

The next question then is whether what has been said regarding appeals will apply equally to applications in revision. Following the observations of the Judicial Committee of the Privy Council in AIR 1932 165 (Privy Council) and Raja of Ramnad v. Kamid Rowthen AIR 1926 P.C. 22 a Pull Bench of the Madras High Court in Chidambara Nadar v. Rama Nadar AIR 1937 Mad. 385 held that there was no substantial distinction to be drawn between the presentation of an appeal and the presentation of an application in revision. The Madras High Court were dealing with the results of presenting such appeals or applications for the purposes of Article 182(a), Limitation Act, but the observations of the Privy Council, it seems to me, apply equally to the disposal of appeals and applications and the effects of such disposal, and I must hold that the dismissal of an application in revision, not for default, but substantially on the ground of the correctness of the first Court''s decree, is itself a decree. If so, it must be deemed to be, for the purposes of Section 48, Civil P.C., the decree which is sought to be executed and therefore the proper starting point for the 12 years period under the section.

I have studied attentively the Madras decision in Nagalinga Chetty v. Srinivasa Iyengar AIR 1941 Mad. 477 which the District Judge has followed. The learned Judges have held that the start of limitation is to be looked for in Section 48, Civil P.C., and that Article 182 has nothing to do with the matter, thus far I entirely agree, but they did not follow this up by examining the question, whose decree is to be executed? Had they gone into this in the light of the authorities I have cited above, I apprehend that they might have arrived finally at a different conclusion; more particularly as in the case before them, a revision application before the High Court had been fully heard and a decree passed for costs. With great respect to those learned Judges, therefore, I am unable to follow that decision. For the sake of clearness, I will now sum up the views to which I have felt myself constrained by the authorities. For determining the period of 12 years'' limitation u/s 48, Civil P.C., reference must be made exclusively to the provisions of the Code and not those of another enactment. The effect of Section 48 differs from that of Article 182 in this that a decree-holder can reckon his three years under Article 182(2) instead of Clause (1) whenever an appeal has been presented, with whatever result, but in order to count 12 years u/s 48 from a date later than that of the first Court''s decision, it is not sufficient that an appeal has been presented, any more than it will avail to show that there has been an amendment of the decree.

He must show that a decree has been passed by a superior Court, but if he does show that, he must succeed; for the decree to be executed is then the appellate Court''s decree. An appellate Court passes ;a decree whenever it adjudicates on and decides the rights of the parties, whether it reverses, modifies or affirms the first Court''s decision, and whether or not the opposite party is called on to answer the appeal. But there is no decree where an appeal or application in revision has been dismissed for default without any adjudication. The effect of application in revision is to be judged on exactly, the same principle as the effect of the presentation and the manner of disposal of an appeal.

In the result while not withdrawing anything that I said in Mt. Dulhin v. Harihar Gir AIR 1939 Pat. 607 I hold that the present case is not governed by that decision which was concerned with the effect of an amendment of the decree. I must add a word with regard to the earlier case of this High Court in Ram Ranvijaya Prasad Singh v. Kesho Prasad Singh AIR 1938 Pat. 401. The facts of that case were that a decree was obtained on 1st October 1924 against which an appeal was preferred in the High Court. The appeal was eventually dismissed for default on failure of the appellants to pay certain costs within a limited time. If the facts of this case had been identical, I might have felt constrained by the authority of Lekha v. Bhauna (95) 18 All. 101, Rifaqat Husain Vs. Musammat Bibi Tawaef , Shyam Mandal v. Satinath Banerjee AIR 1917 Cal. 728, Batuk Nath v. Mt. Munni Dei AIR 1914 P.C. 65 and Abdul Majid v. Jawahir Lal AIR 1914 P.C. 66 to the opinion that there had been no decree of the appellate Court and that time ought to run from the date of the decision of the first Court. It would then have been my duty to refer this case to a larger Bench which might pronounce authoritatively on the correctness of the 1938 decision, but that position does not arise here. On the facts of the present case I find that there has been an adjudication by the superior Court which amounts to a decree. The date of that adjudication (4th May 1929) is the date of the decree sought to be executed. It follows that the Subordinate Judge was right in disallowing the objection and directing execution to proceed.

Accordingly the application is allowed, the decision of the District Judge set aside and that of the Subordinate Judge restored. The petitioner shall have his costs of the appeal before the District Judge and of the present application, hearing fee according to valuation.