Rajamma and another vs C. V. Kotiah Chetty and Co. and others

Mohd. Ahmed Ansari, J.—The judgment-debtor is the appellant. On Khurdad 1, 1358 F. (April 1, 1949), an execution petition was filed against him by the Respondent claiming recovery of the decretal amount and costs. The date of the decree passed by the trial Court is Mehir 25, 1345 F. (August 31, 1946), and that of the High Court is Azur 24, 1355 F. (October 28, 1945). As the. execution petition is beyond three years of both the dates, the decree-holder had pleaded a later order by the High Court, which he claimed, to give him a fresh starting point.

This order was passed on a review petition, whereby it was held that there were no'' grounds to grant the review petition. It is dated Farwardi 25,1356 F. (February 25, 1947). The Lower Court has not accepted the argument on behalf of the decree-holder regarding the date of the order being a starting point for counting the period of three years within which the execution petition is to be filed. It has, however, relied on an order of the Hyderabad Judicial Committee, which is of Isfandar 8, 1356 F. (January 8, 1947).

By this order the learned Judge had directed the petition for special appeal to the Judicial Committee to be consigned to records for the present on the ground that the petitioner had filed a review petition in the High Court and the appeal before the Judicial Committee was not then competent.

The learned Advocate of the appellant has argued that neither the order of Farwardi 25. 1356 F. (February 25, 1947), nor the earlier order of Isfandar 8, 1356 F. (January 8, 1947), furnishes starting point for limitation under Art. 160 of the Hyderabad Limitation Act, which was similar to Art. 182 of the Indian Limitation Act, There is unanimity of opinion that in order to furnish a starting point for counting three years under Cl. (3) of the third column of Art. 182, the order must allow the review petition. The latest of such authorities is the Division Bench Case of Laxman Govinda and Others Vs. Dagdu Shripati Satale and Others, . The same view has been taken in Sheikh Mohammad Nagir and Others Vs. Sheikh Alauddin Ahmad and Another, ). These cases follow Kapuram Zamindar v. Sadasiva, ILR 10 Mad 66 (C).

The Advocate of the respondent has urged that in a review petition an order can only be passed under Order 47, Rule 4, and that it may be one granting or rejecting the review

and that whichever order be passed it is sufficient for purposes of CI. (3) of the third column of Art. 182. He relies on observations of Fazl Ali J. in Bhawanipore Banking Corporation Ltd. v. Gouri Shankar, AIR 1950 SO 6 (D), wherein the learned Judge observes as follows:

In the present case even if it be assumed that the word ''review'' has been used in Art. 182 in a large sense and that the application for reopening the decree under S. 38, Bengal Money Lenders Act was an application for review, the appellant cannot succeed because the Court never understood or purported to review the decree in question.

We do not take the aforesaid observation as overruling the authorities that in order to furnish a starting date for the period of limitation the review application must be granted. Indeed the only decision which could have been cited in support of the respondents'' clai(sic) is of a Single Judge of the Bombay High court which has been dissented from in AIR 19S Bombay 457 (A).

Coming to the order which has been treated by the lower court as the starting date for the three years period we are of the view the the order of the Judicial Committee is not fine for, it has not the effect of finally disposing the appeal. Therefore, it cannot be held covered by CI. (2) of the third column of A 182. Moreover, the view of the Hyderabad High Court had been that an order by the Ju(sic) (sic)cial Committee refusing to give special lea(sic) for appeal does ntt furnish a fresh date.

Admittedly the subject matter of dispi(sic) in the case was not Rs. 10,000/-, and, therefore no appeal lay to the Hyderabad Judicial Court (sic)mittee as a matter of right. In this connection we would refer to Sesha Rao v. Viswanath Deccan IiR 1059 (E).

Accordingly the appeal is allowed w(sic) costs and the execution application is dismig(sic) as being time-barred.