Shams-Ud-Din and Others vs Badi-Un-Nissa

John Edge, Kt., C.J. and Banerji, J.—The respondents here obtained a decree for pre-emption of certain shares in four villages, which we shall call respectively No. 1, No. 2, No. 3 and No. 4 villages. The appellant, who was the defendant in the suit, appealed that decree to the Court of the District Judge. The District Judge on the 19th of December 1889, dismissed the appeal and confirmed the decree of the Court of First Instance. From that decree of the District Judge, the defendant appealed to this Court, in respect only of villages 1 and 3. By his appeal he did not question the decree so far as villages 2 and 4 were concerned. On the 10th of November 1892, this Court varied the decree of the Court below by dismissing the plaintiff''s suit so far as village No. 1 was concerned, and dismissed the defendant''s appeal as to No. 3. On the 29th March 1893, the plaintiffs applied for execution of their decree in respect of villages Nos. 2, 3 and 4. To that application the defendant objected in respect of villages 2 and 4 that the execution was barred by three years'' limitation. The Court executing the decree disallowed the objection. The Subordinate Judge in appeal reversed the decree of the first Court and allowed the objection. The plaintiff appealed to this Court, and Mr. Justice TYRRELL in appeal reversed the decree of the Subordinate Judge and restored that of the Court of First Instance. From that decree of Mr. Justice Tyrrell this appeal has been brought u/s 10 of the Letters Patent.

It has been contended by Munshi Ram Prasad for the appellant that the decree of the District Judge became final as to villages 2 and 4, and that the three years'' limitation prescribed by article 179 of schedule ii of Act No. XV of 1877, began to run, so far as villages 2 and 4 are concerned, from the 19th of December 1889, which was the date of the decree of the District Judge in the appeal in the suit. He has cited the following cases: Hur Proshad Roy v. Enayet Hossein 2 C.L.R. 471; Sangram Singh v. Bujharat Singh ILR 4 All 36 and Mashiat-un-nissa v. Rani ILR 13 All 1; but in these cases all the parties to the suit were not parties to the various appeals from the decree in the suit. The decree of this Court in the appeal in the suit as a matter of fact varied the decree in the suit by dismissing the suit of the plaintiffs as to one of the villages. There was consequently, in our opinion, no final decree between these parties until the decree of this Court was made. It is true that this Court, in the appeal to it, was bound to treat as final the rights of the parties qua villages 2 and 4, as those villages were not the subject of appeal to it, but still it was the decree of the High Court which became the final decree between the parties to the suit. This case is distinguishable from those cited to us, for in those cases, as some of the parties to the earlier decrees were not parties to the subsequent decrees, the earlier decrees became final in the suit, so far as they were concerned, as between themselves, but here the final decree in the suit between the parties was the decree of this Court. We are, consequently, of opinion that paragraph 2 of Article 179 of schedule ii the Indian Limitation Act, 1877, applies in this case and that the application for execution was in time. The appeal is dismissed with costs.