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Judgment
Venkatasubba Rao, J.—The facts have been fully set forth in the order of referring Judges and need not be recapitulated. The short question
is, whether when a revision petition is filed, it is permissible to hold under Article 182(2) of the Limitation Act, that the date of the order in revision
made by the High Court, furnishes the starting point; in other words, whether the term ''appeal'' is used in a restrictive sense so as to exclude
revision petitions and the expression ''the Appellate Court'' is to be confined to a Court exercising appellate, as opposed to, revisional powers. The
only considered decision directly bearing on the point is Subramania Pillai v. Seethai Ammal (1911) 24 M.L.J. 457 : ILR 36 Mad. 135, which
places a restrictive interpretation upon the word ''appeal''; but as the learned Judges who have referred the question, rightly point out, that decision
is inconsistent with the views expressed in numerous authoritative decisions as to the true meaning of the terms ''appeal'' and ""appellate Court"".
The view taken by the learned Judges in Subramania Pillai v. Seethai Ammal (1911) 24 M.L.J. 457 : ILR 36 Mad. 135, necessitated, if we may
say so with respect, their adopting a somewhat curious line of reasoning. They were faced with the difficulty, what should be the starting point
when the revision petition fails; and what, when it succeeds? Logically, from their conclusion that the word ''appeal'' does not include ''revision'' in
neither event should an order upon a revision petition give rise to a fresh starting point. But they were driven to hold that when the revision petition
is dismissed, time runs from the original decree or order but when it succeeds, not from the original, but from the fresh decree or order, either
under Clause (1) or Clause (4). This involves a certain contradiction, as the learned Judges felt compelled to have recourse to the same clause, for
two dissimilar purposes; when the revision petition is dismissed, time would run from the original decree or order under Clause (1); when it is
allowed, under the same clause, from the fresh decree or order. Moreover, by a sort of fiction, the learned Judges held that where the original
order is modified as is sometimes done in revision, it must be treated as having been amended, with the result that Clause (4) is brought into play. It
seems in our opinion somewhat artificial to hold, that modifying an order in revision amounts to amending it, when, as is well known in our
processual law, the word ''amendment'' does not embrace, correction by a superior Court. There is yet a further difficulty revealed by the judgment
of Wallis, J., as he then was, his decision being the one that was upheld in Subramania Pillai v. Seethai Ammal (1911) 24 M.L.J. 457 : ILR 36
Mad. 135. He is constrained to hold that a revision petition may furnish not only two but three starting points, all of them falling under Clause (1):
(1) Where it is simply dismissed, time runs from the date of the original decree;
(2) Where it is dismissed with costs, from the date of the original decree so far as that decree is concerned and from the date of the order of the
High Court, so far as it relates to costs;
(3) Where the decree is modified in revision, from the date of the decree as modified.
It seems to us that such a straining of words as has led to these contradictory and inconsistent results must if possible be avoided.
In Chakkara Chappan Vs. Moidin Kutti, six learned Judges had to consider the question whether under Clause (15) of the Letters Patent as it
stood before the amendment of 1919, an appeal lay from the judgment of a single Judge passed in the exercise of revisional jurisdiction. Clause
(15) enacted that an appeal lay to the High Court from the judgment of one Judge of the High Court or one Judge of a Division Court pursuant to
Section 13 of the Charter Act. Now turning to the last mentioned section, it provided for the exercise by the Judges of the High Court, of the
original and appellate jurisdictions vested in that Court. This raised the question whether revisional jurisdiction was comprised within the term
''appellate jurisdiction'' as used in Section 13, for, if it did not, no appeal would lie under Clause 15 of the Letters Patent. It was held by a majority
of the Judges that an appeal did lie, provided the order amounted to a ''judgment''. Subramania Aiyar, J., in the course of his judgment points out
what the true meaning of the expression ''appellate jurisdiction'' is. That may be exercised in a variety of forms and may be invoked sometimes as a
matter of right and sometimes subject only to certain specified conditions or limitations, such, for instance, as those prescribed in the provision in
the Code relating to the revisional powers of the High Court; but as Subramania Aiyar, J., goes on to observe, no such limitation, however much it
may circumscribe the exercise of the power, touches the intrinsic quality of the power itself (p. 81).
The wording of Clause 39 of the Letters Patent has given rise to a similar question. It enacts that an appeal lies to the Privy Council from a final
judgment or order passed by the High Court on appeal, and that led to the question whether an order made by the High Court in the exercise of its
revisional jurisdiction or powers of superintendence, came within the purview of that clause. Mookerjee and Cox, JJ., held in Secretary of State
for India in Council v. British India Steam Navigation Co. (1911) 13 C.L.J. 90 that such an order, though made in revision, is appealable as there
is no ground for construing the word ''appeal'' used in Clause 39 in a narrow sense. Mookerjee, J., after referring to various authorities, quotes
Lord Westbury in Attorney-General v. Sillem (1864) 10 H.L.C. 704 who observes that the right of appeal is the right of entering a superior Court
and invoking its aid and interposition to redress the error of the Court below. The learned Judge also points out, after referring to Story''s
Constitution (Vol. II, Sections 1760 to 1766), that the characteristic of an appeal is the revision of the judicial proceeding of an inferior Court, so
that the mode in which that power is exercised is wholly immaterial (p. 94).
That a remedy by way of revision does not differ in essence from a right of appeal (the only difference being in the mode in which the power is
exercised), has often been declared by the Judicial Committee. In Rajah of Ramnad v. Khamid Rowthen (1926) 50 M.L.J. 503 : L.R. 53 IndAp
74 : ILR 49 Mad. 335 their Lordships referring to a Civil Revision Petition thus observe:
From this judgment an appeal in the form appropriate to such a case from the Munsif''s Court-i.e., a Civil Revision Petition--was preferred to the
High Court of Madras.
See also (1896) L.R. 23 I.A. 45 (Privy Council) . In Nagendranath De v. Sureshchandra De (1932) 63 M.L.J. 329 : L.R. 59 IndAp 283 : ILR
60 Cal. 1 the question as to what amounted to an appeal under Article 182(2) arose, and the language of their Lordships in view of the present
question raised, though it does not directly bear upon it, is both suggestive and significant. The facts of that case are somewhat complicated, but for
the present purpose it is sufficient to state, that there were two sets of mortgagees--the appellants on the one hand and Madan Mohan and his son,
described as respondents Nos. 24 and 27, on the other. As between them there was a dispute in regard to a sum of Rs. 4,467 and that was
decided in favour of the appellants. Madan Mohan, as one of the decree-holders, applied for a final mortgage decree and in doing so, he again
claimed as against the appellants, his co-decree-holders, the sum which had already been disallowed. The Subordinate Judge on the 24th June,
1920, delivered his judgment, again negativing Madan Mohan''s claim and passed a final decree for the sale of the mortgaged properties. The
decree was drawn up on the 2nd August, 1920, but properly dated as of the 24th June. On the 27th August, 1920, Madan Mohan presented an
appeal to the High Court, not from the decrees of the Subordinate Judge, which in truth it was, but from what was wrongly alleged to be an order
made on the 24th June. As his objection was only to the decision, in so far as it related to his claim against the other decree-holders, he joined
them alone as parties to the appeal and not the judgment-debtors. The appeal, though irregular in form, as not being an appeal against the decree
of the Subordinate Judge, and though insufficiently stamped, was admitted and heard by the Court, and in the result, it was dismissed, both on the
ground of irregularity and upon the merits, and the dismissal was embodied in the decree of the High Court dated the 24th August, 1922. The
appellants on the 3rd October, 1923, presented an application for execution of the decree against the judgment-debtors. It was contended for the
latter that the three years were to be calculated from the 24th June, 1920, in which case the application would be manifestly out of time; it would,
on the other hand, be within time if the critical date was that of the decree of the High Court of the 24th August, 1922; and the decision of the
question depended upon, whether Madan Mohan''s appeal, which was dismissed on the latter date, was an appeal within the meaning of Article
182(2). Their Lordships held that any application by a party to an appellate Court to set aside or revise a decree or order of a Court Subordinate
thereto is an ""appeal"" within the meaning of that provision, even though--
(a) it is irregular or incompetent, or
(b) the person affected by the application to execute were not parties, or
(c) it did not imperil the whole decree or order.
It is only the first of these three points that is now material and it is with the words used by their Lordships in this connection that we are here
concerned. ""There is no definition of ''appeal'' in the Code of Civil Procedure,"" they observe:
But their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a Subordinate
Court, is an appeal within the ordinary acceptation of that term and that it is no less an appeal because it is irregular or incompetent.
True, much importance cannot be attached to the word ""revise"" in this passage, as their Lordships were not adverting to what is technically
known as a revision petition; but the view that there is no essential difference between a remedy by way of appeal and by way of revision, is
considerably reinforced by the passage in question and its value becomes all the greater when we bear in mind that their Lordships made these
observations in construing the very provision with which we are now concerned.
The only serious objection urged against this view is, that in one and the same Act the same word ought not to be construed in two different
senses and that as the word ""appeal"" has a narrower meaning in Articles 150 to 157, it would be wrong to give it an extended sense in Article 182.
But as a canon of construction, though ordinarily the same meaning should be given to the same words occurring in different parts of the same Act,
it is recognised that if sufficient reasons exist, a word can be construed in one part of an Act in a different sense from that it bears in another part
(Craies''s Statute Law, IVth Edn., p. 153). We think we have shown that cogent reasons exist in the present case and what is more, the word
''appeal'' within the ordinary acceptation of that term bears not the narrower but the extended meaning.
Our answer to the question referred is therefore in the affirmative.
JUDGMENT
Venkataramana Rao, J.
The question in this case is whether the execution application dated 16th November, 1932, filed by the plaintiff is barred by limitation. For the
disposal of the same, a few dates of the prior proceedings may be relevant. They are 24th November, 1924, the date of the decree 24th June,
1929, the date of the application for execution, 3rd November, 1927, the date of the order of the High Court dismissing the revision petition
presented against the decree and 16th November, 1932, the date of the present application for execution. When this matter came up on a prior
occasion for hearing before Stone, J., and my learned brother, the question was whether the starting point for the execution of the decree would be
the date of the dismissal of the revision petition in the High Court. Subramania Pillai v. Seethai Animal (1911) 24 M.L.J. 457 : ILR 36 Mad. 135
held that it would not. As a doubt was felt as to the correctness of that decision, the matter was referred to a Full Bench. The Full Bench has now
decided that the term ''appeal'' under Article 182, Clause 2 of the Limitation Act would include revision and therefore the order dismissing the
revision petition would be the final order within the meaning of that article. In the order of reference the learned Judges observed that if the
application dated 24th June, 1929, was in time, the present application would be in time. From the order it would mean that the only question that
was raised and argued before the division bench was that if the starting point for limitation would be the date of the dismissal of the revision
petition, there will be no question of limitation. But Mr. Srinivasa Aiyar now contends that he had no opportunity on the prior occasion to contend
that the application dated 24th June, 1929, would not save limitation even it be held that under Article 182(2) of the Limitation Act the term ''
appeal'' would include revision. He is now permitted to argue that question subject to his filing an affidavit to the effect that he had not the said
opportunity on the prior occasion. He has now raised two questions, namely, (1) the application dated 24th June, 1929, is not in accordance with
law, and (2) there was no final order within the meaning of Article 182, Clause 5 and therefore the present application would be barred by
limitation in any event.
The contention regarding the first point is put thus. The present execution application is to recover a sum of Rs. 1,400 and odd from the 8th
defendant as the legal representative of the first defendant against whom there was a decree for the said sum solely. On the date of the prior
execution application dated 24th June, 1929, the first defendant was dead; the sixth defendant who was recognised as his legal representative was
also dead; the eighth defendant was not brought on record as the legal representative of defendants 1 and 6 and there was no application for
execution against him in respect of the sum now sought to be recovered; thus the application would not be in accordance with law within the
meaning of Article 182, Clause 5 of the Limitation Act. It seems to me that this contention is untenable. Looking into the execution application it
will be seen that in the cause title against the name of the first defendant it is stated that he was dead. A similar entry is made against the name of
the sixth defendant and at the end of the array of the defendants, the following note is added that the legal representative of defendants 1 and 6 is
Rama Nadar, thus indicating that Rama Nadar is sought to be added as the legal representative of defendants 1 and 6. Then, turning to the column
''Name of the judgment-debtor against whom the decree is to be executed'', it is stated ''C.P.A. Palanikumara Nadar and others''; ''and others''
would certainly include Rama Nadar. Therefore the application is in substance one to have the decree executed also against the legal representative
of the first defendant and the sixth defendant. The law does not require an application to bring on record a person as the legal representative of, a
defendant. All that is necessary for a valid execution petition against the legal representative is that the execution application must pray for
execution against a person as the legal representative of another. That in my opinion is complied with in the present application. It is not every
defective application that can be said to be an application not in accordance with law. The only defect that can be alleged in this application is that
in the appropriate column Rama Nadar was not mentioned as the legal representative. It was laid down in Abdul Karim Sahib v. Lakshmanaswami
(1927) 27 L.W. 475 that an application which contains defects such as these cannot be said to be an application not in accordance with law. The
decree, it will be noticed, is a joint decree within the meaning of the explanation to Article 182 of the Limitation Act. The decree provides that in
respect of outstandings all the partners should collect the amounts and the amount should be distributed between them. In addition to this there is a
decree for a specified sum against the first defendant. In Pattannayya v. Pattayya (1925) 50 M.L.J. 215 it was held that a decree is a joint decree
if any one of the reliefs given in the decree is against the defendants jointly, even though some other reliefs may be given against the defendants
separately, so that if in respect of the joint relief an application for execution is made against one of them, it will save limitation in regard to the other
defendants even in respect of the reliefs which have been decreed against solely. If the principle of that decision is to be applied to this case, even
assuming that no relief was sought against the eighth defendant as the legal representative of the first defendant, the application of 24th June, 1929,
would nevertheless be an application in accordance with law and save limitation.
The next question is whether there is a final order within the meaning of Article 182 of the Limitation Act, because under the amended article it
is not the date of the execution application that saves limitation but the final order thereon. Mr. Srinivasa Aiyar contends that there is not, relying
very strongly on a recent decision reported in R.T. Kesavuloo Vs. The Official Receiver and Another, . In that case the actual decision was that an
order returning an execution application would not be a final order even in cases where the application is not represented. I may notice that there is
also authority for the view that it would be-vide the judgment of my learned brother reported in Mottayya Padayachi v. Rajagopalan (1936)
M.W.N. 547 and also of Stodart, J., in the same volume at p. 547. It is unnecessary to express my opinion on this question, whether the order
returning an execution application in cases where it is not represented would be a final order, because it is unnecessary for the disposal of this case.
In my opinion an order would be a final order within the meaning of the clause if it terminates the execution proceeding so far as the Court passing
it is concerned. The order need not be one on the merits. I agree with my learned brother when he says:
I do not think it can be contended reasonably that the legislature intended that where the Court chose to pass certain orders which were not final in
the sense that they did not deal with the merits of the application it was to be held that there was no final order within the meaning of the amended
article. Mottayya Padayachi v. Rajagopalan (1936) M.W.N. 547 .
There is nothing in the decision in R.T. Kesavuloo Vs. The Official Receiver and Another, which runs counter to this view. In fact,
Venkatasubba Rao, J., at p. 341, observes:
The words ''final order'' imply that the proceeding has terminated so far as the Court passing it is concerned.
He cites with approval the decision in Kadiresan v. Maung San Ya AIR 1933 Rang. 87 where it was held that an order made on an execution
application closing the case for want of non-compliance with certain requirements would be final. In that case it was closed at the request of the
party. What happened in this case was that the Court rejected it thus terminating the proceeding. Therefore the order of rejection in this case
would be a final order within the meaning of Article 182, Clause 5 of the Limitation Act and therefore the present application is not barred by
limitation. We therefore reverse the decision of the lower Court and remand the case for disposal in accordance with law.
Pandrang Row, J.
I agree and I wish to say a few words. When the matter originally came up before Stone, J., as he then was and myself it appears to have been
admitted clearly that if the petition presented in June, 1929, was in time, there was nothing else to be done but to allow the appeal and remand the
petition for disposal. If certainly the points that are now raised and which have been dealt with by my learned brother had then been raised before
us, it is difficult to believe that we would have troubled the Full Bench for an opinion before deciding the points now raised by the respondents. The
respondents'' Advocate however assures us that it was not that he raised these points but that he had no opportunity to raise them. If this means
that he was not called upon at all, it is not supported by the preamble to the order of reference which shows that he was heard. What exactly the
learned Advocate means I am unable to say; but as he has given us the assurance that he would undertake to file an affidavit in support of what lie
has said and in view of the fact that the questions raised are questions of law, we have thought it desirable in the interests of justice to allow the
points to be raised and decided instead of refusing him any opportunity to raise them.
As regards the question whether the execution petition filed in June, 1929, is in accordance with law, I have nothing to add to what my learned
brother has said. As regards the other point whether the order thereon dated 18th November, 1929, is a final order, the respondents'' Advocate
relies upon a recent decision of a Bench reported in R.T. Kesavuloo Vs. The Official Receiver and Another, . Indeed, it was hinted by Mr.
Sitarama Rao that it was this subsequent decision which was pronounced after we made the order of reference that is responsible for the raising of
the points at present. That decision no doubt supports in some respects the argument of the respondent''s Advocate. Apart from this, I have given
my anxious consideration to that decision because that decision purports to disapprove of my decision in Mottayya Padayachi v. Rajagopalan
(1936) M.W.N. 547. It is with unfeigned sorrow that I express ray inability to change my opinion on the point. I do not wish to say anything more
on this subject because my learned brother is prepared to base his decision, with which I agree, on what I would call the narrow ground that the
order in that case was of a different tenor from the order in the present case and also that there are certain observations in that decision which are
themselves sufficient to our present conclusion. In fact, in that bench decision there are two definitions-a positive and a negative definition--of a
final order. At p. 359 it is stated that:
When an order is made returning a petition, it does not deal judicially with the matter of the petition and cannot, therefore, be regarded as final.
The other definition is given at p. 341 thus:
The words ''final order'' imply that the proceeding has terminated so far as the Court passing it is concerned.
This latter definition is sufficient to conclude the point raised in this case against the respondents. I have looked into the decisions of. the
Judicial Committee relied upon in R.T. Kesavuloo Vs. The Official Receiver and Another, . I do not think they decide the present question. They
deal with the question as to what is a final order or decree in an appeal within the meaning of Article 182, Clause 2, and it was held that where an
appeal fails by reason of the non-compliance of the rules of procedure prescribed or is dismissed for want of prosecution, there is no order or
decree of the appellate Court in which the decree of the Court below is merged and that all that remains is only the decree of the Court from which
the appeal is preferred. In the present case, we are dealing with an order which rejected the execution application. That order of rejection certainly
put an end to the petition so far as the Court is concerned. It was conceded before us by the Advocate for the respondents that if a petition is
dismissed because it is not pressed, it would be a final order. I do not see why the substitution of the word ''rejected'' for ''dismissed'' should make
any difference in deciding whether the order is final or not. Similarly, if an execution petition is dismissed for default, it would also be a final order.
On the other hand, if the other definition is strictly applied, it may be contended that there was no judicial determination of the matter involved in
the application and therefore there was no final order. I am unable to accept this as a correct interpretation of the words ''final order'' found in
Article 182(5) of the Limitation Act. In innumerable cases execution petitions are dismissed or struck off either for default or for failure to take
steps, and it has never been contended that there is in such cases no final order which alone will provide a fresh starting point for limitation. I
concur in the view expressed by my learned brother that in this case there was a final order, and that order being one dated 18th November,
1929, the subsequent petition filed in 1932 was in time. That petition must therefore be remanded to the Court below for disposal according to
law.
We think in the circumstances of this case, and especially in view of the fact that this case necessitated a reference to a Full Bench and an
argument before the Full Bench and a further argument after the Full Bench opinion was delivered, that a special fee should be allowed in this
appeal. The Advocate''s fee is fixed at Rs. 150. The contesting respondents 2 to 4 must pay the costs of the appellant in this appeal and bear their
own costs. Their costs in the Court below will be within the discretion of the Court below.