Authored By : B.K. Mukherjea, William McCormick Sharpe

B.K. Mukherjea, J.

1. This appeal is on behalf of the judgment-debtor and isdirected against an order dated 13th May 1944, made by the Subordinate Judge,4th Court, Mymensingh, dismissing the appellants objections to the executionof a decree under S. 47, Civil P. C. The facts material for our presentpurposes may be shortly stated as follows : The decree which is sought to beexecuted was passed in a suit for partition brought by the decree-holdersrespondents against the appellant and other defendants in the Court of the 4thSubordinate Judge at Mymensingh. The preliminary decree is dated 3rd April 1938and it was made final on 13th August following. The final decree purports tohave been made on the basis of a compromise. On the day that the petition ofcompromise was filed and the decree was passed the appellant before us, who isdefendant 5 in the suit was admittedly absent from Court, though his pleadersigned the compromise petition on his behalf. On 11th November 1938, defendant5 presented an application for setting aside the compromise decree under order9, Rule 13, as well as under S. 151, Civil P. C., and his contention was thatthe vakalatnama which purported to give authority to his pleader to act on hisbehalf was not signed by him at all and that the decree made was an ex partedecree so far as he was concerned. The trial Court dismissed the application on6th October 1939, primarily on the ground that it was time-barred. Against thisorder an appeal was taken to this Court being F. M. A. No. 53 of 1940, andthere was also an application in the alternative filed under S. 115, Civil P.C., upon which Rule 79 (M) of 1940 was issued. Both the appeal and the rulewere dismissed by this Court on 23rd July 1943. Pending these proceedings thedecree-holders filed an application for execution of the decree only for thepurpose of realising the costs awarded by it, sometime in December 1939 andthis proceeding was struck off for non-prosecution on 4th July 1940.

2. After the appeal against the order rejecting theapplication for setting aside the decree under O. 9, R. 13, Civil P. C., wasdisposed of by this Court the decree-holders commenced the present proceedingon 20th December 1943 praying for delivery of possession of the properties interms of the final decree made in the suit, and it was registered as O. C.Execution case No. 58 of 1943. It was stated under column 11 of the executionpetition that the proceedings in execution were stayed pending the hearing ofthis appeal in this Court and on this statement which is admittedly false, the executingCourt, it seems, held the application for execution to be within time anddirected it to be registered. The Court ordered that delivery of possession ofthe properties might be given in terms of the final decree through aCommissioner appointed by the Court and arrangements were also made for policehelp as there was apprehension of a breach of peace. The present appellantthereupon filed his objections under S. 47, Civil P. C., objecting to theexecution of the decree on the ground that the application for execution wasbarred by limitation under Art. 182, Limitation Act. The Court below over-ruledthis objection being of opinion that under Art. 182, cl. (2), Limitation Act,time would run from 23rd July 1943 when the final order in appeal was made bythis Court. It was further held that as the judgment-debtor did not put forwardhis objection before the order for delivery of possession was made although hereceived notice under O. 21, R. 22, Civil P. C., he was estopped from raisingthis point at a subsequent stage. The propriety of the decision of theSubordinate Judge on both these points has been challenged before us in thisappeal.

3. Now, so far as the first point is concerned, it would beclear from what has been stated above that the application for execution of thedecree was presented in this case beyond three years from the date of thedecree. It was also beyond three years from the date of the final order made inthe previous execution proceeding. To get round the plea of limitation thedecree-holders relied upon cl. (2) of Art. 182, Limitation Act, under which theperiod of limitation for executing the decree runs, when there is an appeal,from the date of the final decree or order made by the appellate Court. In thecase before us there was admittedly no appeal by any party from the finaldecree. There was an application as stated above made by defendant 5 forsetting aside the ex parte final decree under O. 9, R. 13, Civil P. C., and S.151, Civil P. C., and there was an appeal against the order rejecting thatapplication. The final order made by this Court dismissing this appeal is dated23rd July 1943, and the whole controversy centres round the point as to whetherunder cl. (2), Art. 182, Limitation Act, the period for execution of the finaldecree would be three years from the date when the appeal against the orderrejecting the judgment-debtors application for setting aside the decree wasfinally disposed of. In an early pronouncement of this Court which is to befound reported in 8 Cal. 248 Lutful Huq v. Sumbhuddin Puttuck (82) 8 Cal. 248,it was held that when there was an application by a defendant to revive a suitwhich was decreed ex parte against him the application would keep the decreeopen and the decree would not become final till the order of the appellateCourt was passed on the application for reviving the suit. This view, however,was expressly dissented from in later decisions and amongst these we may referparticularly to the cases in 54 Cal. 1052 [LQ/CalHC/1927/131] Fakir Chand Mandal v. Daibacharan(27) 14 A. I. R. 1927 Cal. 904 : 54 Cal. 1052 [LQ/CalHC/1927/131] : 104 I. C. 466 and 35 C. W. N.155 Prafulla Kumar v. Sarojbala Basu (31) 18 : A.I.R. 1931Cal. 332 : 131 I.C. 263 : 35 C. W. N. 155. In the first of these cases Page andGraham JJ. held that the expression decree on appeal can only mean the decreeon appeal from the decree to obtain execution of which the application is made,and an application to set aside a decree does not keep the decree open. Page J.in course of his judgment referred to several decisions of this as well asother High Courts in India (to wit 16 Bom. 123 Jivaji v. Ram Chandra (92) 16Bom. 123; 21 Cal. 387 [LQ/CalHC/1893/106] Baikanta Nath Mittra Aghorenath Bose (94) 21 Cal. 387 [LQ/CalHC/1893/106] and 3 Pat. L. J. 119 Brij Raj v. Naurattan Lal (17) 4 A. I. R. 1917 Pat. 157 :3 Pat. L. J. 119: 44 I. C. 575) in support of the view taken by him. In theother case Rankin C. J. and C. C. Ghose J. expressly dissented from the viewtaken in 8 Cal. 248 Lutful Huq v. Sumbhuddin Puttuck (82) 8 Cal. 248 and heldthat the words "the final decree or order of the appellate Court" inArt. 182 (2), Limitation Act, mean the final decree or order passed on appealfrom the decree which is sought to be executed and do not include the finaldecree or order that may be passed on appeal from an order made in a proceedingunder O. 9, R. 13, Civil P. C., to have the decree which is sought to beexecuted, set aside.

4. The authorities of this Court therefore are decidedly infavour of the appellant. The argument of Dr. Sen Gupta who appears for therespondents decree-holders is that the law laid down in the above cases is nolonger sound and has been impliedly overruled by the Privy Council in 59 I. A.283 Nagendra Nath Dey v. Suresh Chandra Dey (32) 19 A. I. R. 1932 P. C. 165 :60 Cal. 1: 59 I. A. 283 : 137 I. C. 529 (P. C.). This contention apparentlyreceives support from certain decisions of the other High Courts in India whichhave accepted the interpretation which Dr. Sen Gupta wants to put on thedecision of the Judicial Committee mentioned above. The question has not beenconsidered till now by this Court and certainly requires careful examination.Stripped of details, the facts of the Privy Council case were as follows:Madden Mohan who was the plaintiff in a mortgage suit, in his application forfinal decree claimed that certain co-mortgagees who were defendants 11 and 12in the suit had assigned their interests in his favour and consequently he wasentitled to add to his own claim the shares of the mortgage money allowed todefendants 11 and 12. This claim was rejected and a final decree was made inthe usual way in favour of all the mortgagees on 24th June 1920. On 27th August1920, Madden Mohan appealed to this Court and in this appeal only the decree-holdersmortgagees were made parties. Not only were the judgment-debtors not madeparties to the appeal but the appeal itself which purported to be an appealfrom an order embodied in the final decree and not the decree itself wasinsufficiently stamped. The complaint of the appellant was limited to thequestion of assignment only which was decided against him by the trial Judge.This appeal was dismissed by this Court on the ground of irregularity as wellas on its merits, on 24th August 1923. On 3rd October 1923, defendants 11 and12 who were co-mortgagees of the plaintiff presented an application to theSubordinate Judge for execution of the final mortgage decree, by sale of themortgaged properties. It was opposed by the mortgagors judgment-debtors on theground that it was barred by limitation under Art. 182, Limitation Act. TheSubordinate Judge overruled this contention and allowed the execution toproceed. On appeal, the decision of the Subordinate Judge was reversed by aDivision Bench of this Court consisting of Suhrawardy and Graham JJ. SuhrawardyJ. held on the basis of the decision in 19 C. W. N. 287 Christiania Ben Shawneev. Beaneries Prosad (14) 1 A. I. R. 1914 Cal. 583 : 22 I. C. 685 : 19 C.W.N.287, that the word appeal in cl. (2) of Art. 182 means and can only mean anappeal which is directed against the decree sought to be executed, and is ofsuch a nature that the result of it is likely to affect the decree. Graham J.concurring in this view observed as follows:

The decisive factor in cases of this nature appears to bewhether the appeal imperils or not the whole decree for the execution of whichthe application was made. Applying this test it is clear that the decree as awhole was never imperilled and consequently it remained final and limitationmust run from the date of the final decree and not from the date of thedecision of the appeal.

5. There was an appeal taken against this decision bydefendants 11 and 12 to the Privy Council, and their Lordships of the JudicialCommittee reversed the decision of the High Court and held that there was anappeal within the meaning of Art. 182 (2), Limitation Act and time would runfrom the order made by the High Court. On behalf of the judgment-debtors thedecision of the High Court was sought to be supported on three grounds namely(1) that the appeal preferred by Madden Mohan on 27th August 1920 was by reasonof its irregularity not an appeal at all, but an abortive attempt to appeal;(2) that an appeal in order to save limitation under cl. (2) of the Articlemust be one in which the persons affected by it namely the judgment-debtorswere parties and (3) that it must be also one in which the whole decree wasimperilled. In their Lordships opinion none of these contentions was of anyavail to the judgment-debtors. "The question" thus runs the judgment,

must be decided upon the plain words of the Article : wherethere has been an appeal, time is to run from the date of the decree of theappellate Court. There is, in their Lordships opinion, no warrant for readinginto the words quoted any qualification either as to the character of theappeal or as to the parties to it; the words mean just what they say. Thefixation of periods of limitation must always be to some extent arbitrary, andmay frequently result in hardship. But in construing such provisions equitableconsiderations are out of place, and the strict grammatical meaning of thewords is, their Lordships think, the only safe guide. It is at least anintelligible rule that so long as there is any question sub judice between anyof the parties those affected shall not be compelled to pursue the so oftenthorny path of execution which, if the final result is against them may lead tono advantage. Nor in such a case as this is the judgment-debtor prejudiced......But whether there be or be not a theoretical justification for the provision inquestion, their Lordships think that the words of the Article are plain, andthat there having been in the present case an appeal from the mortgage decreeof 24th June 1920, time only ran against the appellants from 24th August 1922,the date of the Appellate Courts decree.

6. It is not disputed that their Lordships of the JudicialCommittee were not called upon to decide a case like the present where theappeal was not from the decree sought to be executed or a portion of it butfrom an order made on an application to set aside the decree which was passedex parte. Their Lordships laid particular stress on the fact that in the casebefore them the appeal was against the mortgage decree dated 24th June 1920. Intheir opinion the character of the appeal was altogether immaterial; it wasalso immaterial as to who were made parties to it and whether or not itimperilled or affected the entire decree. It was enough that there was anappeal in the sense that the appellate tribunal was invited to set aside adecision of a subordinate Court and therefore it attracted the operation of cl.(2) of Art. 182, Limitation Act. In our opinion this decision is no authorityfor the proposition that the appeal contemplated by Art. 182 (2), LimitationAct, need not be directed against the decree which is the subject-matter ofexecution or a portion of it and it is enough if there was an appeal from anorder passed in a separate or independent proceeding the result of which mightaffect the decree in any event. The doctrine of imperilling the decree uponwhich the decision of the Judges of this Court rested was expressly reversed bytheir Lordships of the Judicial Committee.

7. Dr. Sen Gupta is undoubtedly supported in his contentionby certain recent decisions of some of the other High Courts in India. In thecase in 16 Pat. 306 Firm Dedhraj Lachminarayan v. Bhagwan Dais (37) 24 A. I.R. 1937 Pat. 337 : 16 Pat. 306 : 169 I. C. 581 it was held by a Letters PatentBench of the Patna High Court that the words "where there has been anappeal" in cl. (2) of Art. 182, Limitation Act, do not mean that theappeal must be against the decree in the suit. They include an appeal againstan order made on an application for re-hearing of an appeal under O. 41, R. 21,Civil P. C. The learned Judges were of opinion that the contrary view taken inthe previous decision of the Patna High Court in 3 Pat. L. J. 119 Brij Raj v.Naurattan Lal (17) 4 A. I. R. 1917 Pat. 157 : 3 Pat. L. J. 119: 44 I. C. 575has been impliedly overruled by the decision of the Privy Council in 59 I. A.283 Nagendra Nath Dey v. Suresh Chandra Dey (32) 19 A. I. R. 1932 P. C. 165 :60 Cal. 1: 59 I. A. 283 : 137 I. C. 529 (P. C.). In A. I. R. 1939 Mad. 157 [LQ/MadHC/1938/313] Sriram Chandra v. Chintamani Bhatta Venkateswararao (39) 26 A. I. R. 1939 Mad.157 : I. L. R. (1939) Mad. 252 : 181 I. C. 491 decided by the Madras HighCourt, the facts were almost identical with those of the case before us. Therewas also an application to set aside an ex parte decree and an appeal takenagainst the order of dismissal passed in that proceeding and it was held thattime for execution of the original decree would run from the date when thefinal order of the appellate Court was passed in the proceeding under O. 9, R.19, Civil P. C. The learned Judges proceeded upon the basis of the observationof the Judicial Committee which we have set out above; and although theirLordships of the Judicial Committee were not dealing with an appeal against anorder refusing to set aside an ex parte decree the principles contained in thepassages in the judgment quoted above were according to the learned Judges wideenough to cover the present case. In their opinion, it does not necessarilyfollow that because a decree or order is mentioned in column 1 of Art. 182, theappeal mentioned in column 3 must be against the decree or order. It would beequally logical to say that it must be something which affects the decree ororder. With all deference to these learned Judges we are unable to subscribe tothe view taken by them. In the case before the Judicial Committee the appealpreferred by the plaintiff was against the final decree in the mortgage suit.It was not against the entire decree but purported to be directed against thatportion of it which negatived the claims of the plaintiff which he put forwardon the basis of assignment from some of his co-mortgagees. The appeal, asstated above, was defective in form and was not properly stamped. TheirLordships of the Judicial Committee held that they must go by the language ofthe Article and equitable considerations were quite irrelevant to theconstruction of a statute of limitation. The Article speaks of an appeal. Herethere was an appeal directed against the decree though it was limited in itscharacter and defective in its form. But these were immaterial if there was infact an appeal from the decree sought to be executed. The decree-holders wereentitled to the extended period of limitation provided there by Art. 182 (2),Limitation Act and the question whether the appeal imperilled the entire decreeor not was altogether irrelevant. In our opinion if the view taken by theMadras and Patna High Courts be accepted as sound the expression appeal incl. (2) of Art 182, Limitation Act would mean an appeal which may not bedirected against the decree or order sought to be executed but has the effectof affecting or imperilling the said decree. This would be introducing, for allpractical purposes, the doctrine of imperilling the decree which was expresslyrepudiated by their Lordships. Their Lordships definitely held that whether ornot the appeal imperilled the decree was irrelevant to the enquiry and the onlything material was whether there was in fact an appeal, no matter whether itwas defective in form and of a partial or fragmentary character.

8. Dr. Sen Gupta also drew our attention to a decision ofthe Bombay High Court which is to be found reported in 57 Bom. 388 [LQ/BomHC/1932/198] NagappaBandappa v. Garushantappa (33) 20 A.I.R. 1983 Bom. 255 : 57 Bom. 388 [LQ/BomHC/1932/198] : 147 I.C. 1227. The facts of that case were different from those of the present one.There a decree for money was reduced on an application for review presented bythe defendants. The decree-holders preferred an appeal against the ordergranting the review but not against the amended decree made after review. Itwas held that the time for execution of the new amended decree would run fromthe date on which the appeal against the order granting review was dismissed.If the appeal was preferred against the amended decree undoubtedly thedecree-holders could invoke the provisions of cl. (2) of Art. 182, LimitationAct, as a decree would include an amended decree as well but if there was noappeal from the amended decree it is difficult to say how the period oflimitation would be enlarged by an appeal from any order passed in the courseof the suit. If that is the position, limitation could also be extended by anappeal taken against a subsequent decree which might be passed in a suit to setaside the original decree which is sought to be executed. In our opinion, abroad proposition like this cannot be inferred either from the actual decisionof their Lordships of the Judicial Committee in 59 I. A. 283 Nagendra Nath Deyv. Suresh Chandra Dey (32) 19 A. I. R. 1932 P. C. 165 : 60 Cal. 1: 59 I. A.283 : 137 I. C. 529 (P. C.) or from the observations made by their Lordships inthe course of the judgment which we have set out in extenso above.

9. Dr. Sen Gupta argues that the Legislature in Art. 182(2), Limitation Act, uses the word appeal generally without anyqualification, and it cannot be limited to an appeal against a decree which issought to be executed. He cites two classes of cases where this interpretationwould lead to anomalous results. The first is where a decree is amendedsubsequently on an application by a party to the suit and on an appeal beingtaken against the amended decree the appeal is allowed and the original decreeis restored. He says that time in such cases must run from the date of theappellate judgment and not from the date of the original decree which waseventually restored by the appellate Court. This would undoubtedly be theposition; but as has been said already the word appeal in cl. (2) is wideenough to include an appeal from an amended decree. The decree that can beexecuted is the final decree made on appeal from the amended decree and it isquite immaterial that the appellate Court exercising its appellate powersvaried the amended decree and restored the original decree of the Court. Thisclass of cases, therefore, does not militate against the view taken all alongin our Courts that the appeal in cl. (2) of Art. 182, Limitation Act, means theappeal from the decree sought to be executed. The other class mentioned by Dr.Sen Gupta covers cases where an appeal is preferred against a preliminarydecree and a final decree is passed subsequently which is not appealed against.If the appeal against the preliminary decree is dismissed time for execution ofthe final decree would run not from the date when the final decree was passedbut from the date when the appellate judgment was pronounced in the appealtaken against the preliminary decree. We think that this admits of anexplanation for the appeal against the preliminary decree is in substancethough not in form an appeal against the final decree also and the final decreehas got no existence apart from the preliminary decree. But it is not necessaryfor us to examine all sorts of hypothetical cases that might arise forconsideration. The whole question that requires decision in this appeal iswhether the view taken by this Court in a series of cases to the effect that anappeal from an order rejecting an application to set aside an ex parte decreeunder O.9, R. 13, Civil P. C., does not extend the period of limitation forexecution of the decree under Art. 182 (2), Limitation Act, has or has not beensuperseded by the pronouncement of the Judicial Committee in 59 I. A. 283Nagendra Nath Dey v. Suresh Chandra Dey (32) 19 A. I. R. 1932 P. C. 165 : 60Cal. 1: 59 I. A. 283 : 137 I. C. 529 (P. C.). For the reasons given above weare decidedly of the opinion that the answer to this question must be in thenegative. The result is that the first point raised by the appellant is quitesound and in our opinion the application for execution is barred by limitation.

10. The next question then arises whether thejudgment-debtor is estopped from raising the question of limitation at all inthe present proceeding. It appears from the records that on 20th December 1943when the application for execution was registered the Court directed issue ofnotice under O. 21, R. 22, Civil P. C. The peons report shows that on 31stDecember 1948 notice under O. 21, R. 22, Civil P. C., was served upon thejudgment-debtors including the present appellant. The orders for delivery ofpossession were made by the Court on 30th March and 3rd April 1944.Judgment-debtor 5 presented his objection under S. 47, Civil P. C., only on22nd April 1944. It cannot be disputed that if the notice under O. 21, R. 22was actually served upon the judgment-debtor and he was apprised of the factthat the decree-holders had started proceedings for execution of the decree bydelivery of possession of the properties and if in spite of the notice heremained silent, he cannot, at a subsequent stage of the proceeding, raise thequestion of limitation which must be deemed to have been decided against himwhen the Court made the order for execution : vide the case in 37 C. W. N. 752Lalit Mohan v. Sarat Chandra (33) 20 : A.I.R. 1933 Cal. 855 [LQ/CalHC/1933/80] :149 I.C. 1017 : 37 C.W.N. 752. The controversy thus centres round the point asto whether the notice was really served upon the appellant and he had theopportunity of putting forward his contention against the decision of the Courtdirecting delivery of possession to be made against him. The peons reportshows that defendant 5 was absent from his house at the time when the peon wentthere to serve the notices. He had on that day gone to Netrakona in connectionwith a criminal case. Defendant 4 who is a brother of defendant 5 was presenton the spot and he having refused to accept notice it was hung upon the fencingof the katchari bari. The peon says in his report that this service waseffected in the presence of two witnesses namely Hriday Chandra Dey and KumudChandra Bhattacharji. Neither the peon nor the above two witnesses wereexamined in this case and the Subordinate Judge was apparently labouring undera misapprehension when he observed in his judgment that both the two had puttheir signatures on the return of the serving peon. As a matter of fact, onlyone of the witnesses named Hriday signed the paper and not the other. Dr. SenGupta relies upon O. 5, R. 15, Civil P. C., which empowers the serving peon toserve notices on any adult male member of the family of the defendant in casethe defendant cannot be found and has no agent empowered to accept the service.It does not appear from the evidence adduced in the case as to whether the peonmade any enquiries about defendant 5 or satisfied himself that he was notlikely to return very soon. Apparently, he did not wait and made no effort toserve the notice upon him personally. It is also not clear from the evidence asto whether defendant 4 was a member of his family. The finding of theSubordinate Judge on this point is certainly unsatisfactory and the wholematter requires reconsideration.

11. We would accordingly allow the appeal and set aside thejudgment of the learned Subordinate Judge. The case would go back and the Courtbelow will on the evidence already recorded and on such further evidence asmight be adduced by the parties come to a definite finding as to whether noticeunder O. 21, R. 22, Civil P. C., was duly served upon defendant 5. If he findsthat the notice was duly served, defendant 6 would be deemed incompetent in lawto question the order for execution that was made after the service of notice uponhim under O. 21, R. 22, Civil P. C. If the Court decides that the notice wasnot duly served the application for execution will stand dismissed on theground of limitation. We make no order as to costs in this appeal. Future costswill be in the discretion of the Court below.

William McCormick Sharpe, J.

12. I agree.

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Haris Chandra Chowdhury vs. Dines Chandra Chowdhury (01.03.1946 - CALHC)+