Thandavaroya Gramani vs Arumugha Mudali and Another

Kuppuswami Ayyar, J.—The only point for consideration in this appeal is whether E.A. No. 1102 of 1942 on the file of the Chingleput

Subordinate Judge''s Court out of which this appeal arises was barred by limitation or not. Both the lower Courts have found that it was not barred

by limitation. The decree was passed on 11th November, 1938. The defendant was ex parte. This petition was filed on 25th July, 1942. The final

order on the previous E.P. No. 287 of 1939 was passed on 5th July, 1939. But it was alleged for the decree-holder that the defendant made an

application, I.A. No. 384 of 1939, to set aside the ex parte decree in the suit, and that an appeal was preferred against the order dismissing that

application and that appeal was dismissed as incompetent and therefore the period of limitation commenced on 5th August, 1940, the date on

which the appeal against the petition to set aside the ex parte decree was disposed of. It is contended for the appellant that there was no final order

by an appellate Court as the appeal itself was not maintainable and consequently the date of the dismissal of the appeal cannot furnish a starting

point of limitation. That an appeal was filed is a fact and that it was filed in the Court to which appeals from the Court which passed the original

decree would lie ordinarily under the Civil Courts, Act is not disputed. But what is stated is that against the order in such proceedings of a small

cause nature no appeal is provided and consequently the order in the appeal would not furnish a starting point of limitation. It is not disputed that if

an appeal lay and the order had been passed that it would furnish a starting point of limitation in this case, but since it is stated that the appeal was

incompetent any order passed thereon cannot be said to be an order as contemplated in Article 182(2) of the Limitation Act which runs thus:

For the execution of a decree or order of any Civil Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908,

Three years; from (where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal.

Therefore, the only essentials are that there must have been an appeal and an order of the appellate Court. In this cas6 an appeal was filed and that

was filed in the Court to which appeals from the Court which passed the decree ordinarily lay and that appeal was dismissed.

The interpretation of this Article had to be considered by the Privy Council in Nagendranath Dey v. Sureshchandra Dey (1932) 63 M.L.J. 329 :

L.R. 59 IndAp 283 : ILR 60 Cal 1 and this is what was observed by their Lordships:

There is no definition of appeal in the Civil Procedure Code, 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 the term, and that it is no

less-an appeal because it is irregular or incompetent.

In this case, there was an appeal though it was incompetent not in the sense that it was filed in a wrong forum but on the ground that no appeal lay.

But even if it was an incompetent appeal, an order in that appeal would give a starting point of limitation under Article 182(2). The decision in

Muhammad Abdul Kadir Marakayar by guardian Muhammad Kasim Marakayar and Others Vs. Samipandia Tevar and Others, cited for the

appellant has no application. There the appeal was not presented to the proper Court, and it was returned for presentation to the proper Court It

was said that such an order was not the final order of an appellate Court. The decision in Byyareddi v. Gopal Rao (1933) 66 M.L.J. 486 : ILR 57

Mad. 741 also has no application to the facts of this case There an appeal was filed out of time and a petition to excuse the delay u/s 5 of the

Limitation Act had been filed. But that petition was dismissed The appeal could have been considered only if that petition was allowed Hence it

was held that there was no appeal filed in that Court, because the delay was not excused. By reason of Sub-section 3 of Rule 1 of Order 41, the

Court can in no way deal with the appeal before the petition to excuse the delay is considered. There was therefore no appeal at all before that

Court to pass any order. The order rejecting the petition to excuse the delay was not an order on the appeal The decision in Ramratan v. Upendra

Chandradas (1922) 68 I.C. 727 was given before the decision of the Privy Council referred to above in Nagendranath Dey v. Sureshchandra

Dey1. Both the Courts were therefore perfectly justified in acting on the observations of the Privy Council in Nagendranath Dey v. Sureshchandra

Dey1 quoted above and finding that even though the appeal was incompetent its dismissal will furnish a fresh starting point of limitation under

Article 182(2). Vide also the observations of Sir George Lowndes in the course of the arguments in Nagendranath Dey v. Sureshchandra Dey1

The decision in Velaguru Asari v. Suppa Naicken (1943) 2 M.L.J. cited for the appellant also has no bearing on the facts of this case. There the

question considered was about Article 181 with regard to an application for a final decree and there was no occasion in that case to consider the

effect of the appeal as contemplated by Article 182(2) with reference to a petition for execution of a decree.

The appeal fails and is dismissed with costs. Leave refused.