1. This appeal is directed against an order in proceedingsin execution of a decree for delivery of possession of land made on the 17thSeptember 1903. The question in controversy is, whether an application forexecution of this decree, made on the 7th May 1910, is barred by limitation.The Courts below have concurrently held that the application is not barred. Weare now invited by the judgment-debtors to hold that this view is erroneous inlaw. For the determination of the question raised before us, it is necessary torecapitulate the essential: facts, which are all admitted.

2. The plaintiffs sued two sets of persons, who may becalled A and B, for recovery of possession of land. A petition of compromisewas filed on behalf of some of the defendants. The Court came to the conclusionthat the compromise was operative only as regards some of them (A) and gaveeffect to it to that extent. The suit was heard on the merits as against allthe other defendants (B). The result was a two-fold decree, first, forpossession as against the consenting defendants (A), without mesne profits orcosts; and, secondly, for possession against the contesting defendants (B), whowere made liable for costs and mesne profits. B appealed to the District Judgeand valued their appeal at the value of the subject-matter of the entireproperty involved in the suit in the Court of first instance. They did not joinA as respondents; the only respondents to the appeal were the successfulplaintiffs. The appeal was preferred on the 25th, January 1904. The parties, however,agreed to await the decision of this Court in an analogous litigation, whichhad been brought up here by way of first appeal. After the disposal of thatappeal by this Court, the appeal before the District Judge was taken up, andwas dismissed on the 8th May 1907, on the footing of the agreement that theparties would abide by the decision of the High Court in the suit previouslymentioned.

3. The present application for execution of the decree ofthe 17th September 1903 was made on the 7th May 1910. On the 28th August, writfor delivery was issued; and it is alleged that the decree-holders were placedin possession on the 5th September. On the 29th September, however, objectionwas taken by the judgment-debtors that the decree was incapable of execution asthe rights thereunder had been extinguished by the Statute of Limitation. TheCourts below have overruled this contention. On the present appeal, thecontroversy has centred round Clause 2 of the third column of Article 182 ofthe Schedule to the Indian Limitation Act. That clause provides that anapplication for execution of a decree of a Civil Court not provided for byArticle 183 or Section 43 of the Code of 1908 must be made within three yearsfrom the date of the final decree of the Appellate Court or the withdrawal ofthe appeal, where there has been an appeal, On behalf of the judgment-debtorsappellants reliance had been placed up on the cases of Sreenath v. Brojo Nath13 W.R. 309 : 4 B.L.R. Ap. 99; Wise v. Raj Narain Chuckerbutty 10 B.L.R. 258 :19 W.R. 30; Hur Proshad v. Enayet Hossain 2 C.L.R. 471; Raghunath Pershad v.Abbul Hye 14 C. 26; Christiana Benshawn v. Benarasi Proshad 22 Ind. Cas. 685 :19 C.W.N. 287; Sangram Singh v. Bujharat Singh 4 A. 36 : A.W.N. (1881) 128;Mashiat-un-nissa v. Rani 13 A. 1 : A.W.N. (1889) 207 and Badi-un-nissa v.Shams-ud-din 17 A. 103 : A.W.N. (1895) 20. On the basis of these decisions theargument has been founded that as the decree holders could have executed theconsent decree obtained by them against A, notwithstanding the pendency of theappeal preferred by B, they could not claim the benefit of Clause (2) of thethird column of Article 182. The contention in substance is that in realitythere are two completely distinct decrees on the same sheet of paper and thefact that an appeal had been preferred by B against one of these decrees, doesnot entitle the decree-holders to an extension of time against A in respect ofthe other decree. It is further pointed out that not only was not an appealpreferred against the consent decree, but under the law an appeal could nothave been preferred against that decree. Sir Rash Behary Ghose for theappellants has, however, drawn our attention to the decisions in Mullick AhmedZumma v. Mahomed Syed 6 C. 194 : 6 C.L.R. 573; Basant Lal v. Nojmunnissa Bibi 6A. 14 : A.W.N. (1883) 179; Gungamoyee v. Shib Sunker 3 C.L.R. 430; Nundun Lalv. Rai Joykishen 16 C. 598; Kristo Churn Dass v. Radha Churn Kur 19 C. 750;Nurul Hasan v. Muhammad Hasan 8 A. 573 : A.W.N. (1886) 237; Muthu v. Chellappa12 M. 479 and Gopal Chunder v. Gosain Das Kalay 25 C. 594 : :2 C.W.N. 556. Some of these cases are possibly distinguishable, but it has notbeen disputed that from the others a rule is deducible which would negative thecontention of the appellants. On behalf of the respondents, reliance has beenplaced particularly upon the cases of Badi-un-nissa v. Shams-ud-din 17 A. 103 :A.W.N; Gopal Chunder v. Gosain Das 25 C. 594 : : 2 C.W.N.556; Ashfaq Husain v. Gauri Sahai 9 Ind. Cas. 975 : 15 C.W.N. 370 : 8 A.L.J.332 : 9 M.L.T. 380 : 13 Bom. L.R. 367 : 4 Bur. L.T. 121 : 21 M.L.J. 1140 : 38I.A. 37 : 33 A. 264 : 13 C.L.J. 351 which, it has been contended, negative theposition taken up by the appellants.

4. It is not necessary for our present purpose to determinethe true scope and meaning: of the term appeal as used in Clause 2 of thethird column of Article 182; upon that matter there has been divergence ofjudicial opinion. While a narrow view was taken in some of the cases alreadymentioned, a wider interpretation was placed upon the term in the cases ofAbdul Rahiman v. Moidin Saiba 22 B. 500; Shivram v. Sakharam 1 Ind. Cas. 459 [LQ/BomHC/1908/91] :33 B. 39 : 10 Bom L.R. 939 Viraraghava Ayyangar v. Ponnammal 23 M. 60 : 9 M.L.J.284 and Kristnama v. Mangammal 26 M.91. In these cases the position wasmaintained that time ran against the decree-holder from the date of the finaldecree in the appeal, irrespective of the question whether the appeal did ordid not imperil the decree whereof execution was ultimately sought. We do notpropose to enter upon an examination of this wide problem for two reasons;first, because, even if the view be maintained that a decree-holder is entitledto the benefit of the extended time contemplated by Clause (2) of Article 182only when the decree whereof execution is sought, is imperilled by the appeal,the position taken up by the appellants cannot be sustained; and secondly,because the contention of the appellants must fail in view of the decision ofthe Judicial Committee in Ashfaq Husain v. Gauri Sahai 9 Ind. Cas. 975 : 15C.W.N. 370 : 8 A.L.J. 332 : 9 M.L.T. 380 : 13 Bom. L.R. 367 : 4 Bur. L.T. 121 :21 M.L.J. 1140 : 38 I.A. 37 : 33 A. 264 : 13 C.L.J. 351.

5. As regards the first point, it is clear that although aperson who is a party to a compromise cannot challenge the validity of theconsent decree by way of appeal, it is competent to a party to the suit, whohas not joined in the compromise, to appeal against the decree if he has beenprejudiced thereby. This has been recognised in suits for partition of jointproperties where a decree has been made by consent of some only of the partiesto the litigation: Nityamoni Dasi v. Gohul Chandra Sen 9 Ind. Cas. 210 [LQ/CalHC/1910/263] : 13C.L.J. 16. It is also clear that circumstances may be imagined in suits ofother description, for instance, suits for contribution or even suits forpossession of joint property where, in the event of a compromise amongst someonly of the parties to the litigation, another person, a party to the suit butnot a party to the compromise, may challenge the decree by way of appeal on theground that he has been prejudiced thereby. In the present instance, we havethe unquestionable fact that the contesting defendants did prefer an appeal againstthe entire decree. In that appeal, there was, to use the language of thedecision in Ramchandara Gopal v. Antaji Vasudev 5 Bom. L.R. 735 the chance orrisk of the Appellate Court modifying the decree of the trial Court. The entiredecree was under appeal and was in peril. It is worthy of note that thecontesting defendants were in a manner constrained to appeal against the entiredecree. The plaintiffs sought a decree for ejectment of the defendants; therelief claimed was a joint decree against all of them. The result of theconsent decree and of the decree on contest was that there was a decree forpossession in favour of the plaintiffs against all the defendants, but againstsome, the decree was on consent while against others, it was on contest. Thedecree did not define the precise position of the defendants who had enteredinto the compromise. It did not specify their share in the property if theywere in joint possession; if they were in occupation of demarcated plots, thedecree did not define such portions. The result was that the decree, thoughmade by consent as to a portion and on contest as to the remainder, was still ajoint decree, in the sense that, if maintained, it entitled the plaintiffs torecover possession of the entire property in dispute from all the defendantsjointly. The contesting defendants appealed against this decree. As the decreedid not define their position, they were bound to appeal against the wholedecree. It is thus plain that the validity of the entire decree was incontroversy in the appeal, and from this point of view, theplaintiffs-decree-holders would undoubtedly be entitled to the benefit ofClause 2 of Article 182: Gopal Chunder v. Gosain Das 25 C. 594 : 2 C.W.N. 556;Badi-un-nissa v. Shams-ud-din 17 A. 103 : A.W.N. (1895) 20. Some stress hasbeen laid upon the decision in Christiana Benshawn v. Benarasi Proshad 22 Ind.Cas. 685 : 19 C.W.N. 287 which is clearly distinguishable and is of noassistance to the appellants. In that case, there were two distinct decrees,one in favour of some of the defendants against the plaintiff, the other infavour of the plaintiff against the other defendants. An appeal was preferredagainst the latter portion of the decree; that appeal did not and could notimperil the other portion of the decree. In these circumstances, thedecree-holder was rightly held not entitled to the benefit of Clause (2) ofArticle 182. Nor is the decision of the Judicial Committee in Batuk Nath v.Munni Dei 23 Ind. Cas. 644 : 36 A. 284 : 19 C.L.J. 574 : 12 A.L.J. 596 16 Bom.L.R. 360 : 27 M.L.J. 1 : 16 M.L.T. 1 L.W. 729 : : 18 C.W.N.740 of any avail to the appellants. In that case, there was no decree of theCourt of Appeal, because the appeal preferred to the Judicial Committee never cameup for disposal by their Lordships. The appeal was dismissed by the Registrarfor non-prosecution, and it was ruled that the order of the Registrar was not adecree of the Court of Appeal.

6. As regards the second point, namely, the effect of therule deducible from the decision of the Judicial Committee in Ashfaq Husain v.Gauri Sahai 9 Ind. Cas. 975 : 15 C.W.N. 370 : 8 A.L.J. 332 : 9 M.L.T. 380 : 13Bom. L.R. 367 : 4 Bur. L.T. 121 : 21 M.L.J. 1140 : 38 I.A. 37 : 33 A. 264 : 13C.L.J. 351 we are of opinion that it is completely destructive of thecontention of the appellants. There a joint decree for sale of land wasobtained by the plaintiffs against the defendants. The decree was ex parteagainst one of the defendants and was on contest as against the other. Theperson against whom the decree had been made ex parte took steps to have thedecree vacated in so far as she was concerned. The decree, however, remaineduntouched as against the other defendants. Ultimately, the suit was re-tried asagainst the person at whose instance it had been re-opened, and a decree wasmade against her which was confirmed on appeal. It was ruled that thedecree-holders were entitled to the benefit of Clause (2) of Article 182, notonly against the defendant at whose instance the case had been re-opened, butalso as against the defendants against whom a decree had been made on contestin the first instance. The Judicial Committee pointed out that the plaintiffswere entitled to a joint decree against all the defendants, and that the decreeoriginally made was merely a step for the attainment of that ultimate object,so that time ran as against the decree-holders from the date when the finaldecree was made. In the case before us, the plaintiffs were entitled to a jointdecree against all the defendants. On appeal by the contesting defendants, theentire matter was re-opened. When the appeal was dismissed in the end, thedecree of the trial Court stood confirmed; it is clear that the plaintiffs wereentitled to wait till the final decree had been made in their favour. If thisview were not taken, the plaintiffs might find themselves in a position ofconsiderable embarrassment, as an attempt to execute against the consentingdefendants alone a decree which did not define their liability, might lead toobvious complications. In our opinion, the plaintiffs were not bound to executethe decree till the final disposal of the appeal.

7. We hold accordingly that the view taken by the Courtsbelow is correct and that the application for execution is not barred bylimitation. We may add that on behalf of the appellants, Babu Joges Chandra Roycandidly admitted that the justice of the case was entirely with therespondents and that it was iniquitous on the part of the appellants, who hadconsented to a decree against themselves, to urge every conceivable objectionagainst the execution of that decree. In that estimate of the merits of thecase, we entirely agree.

8. The result is that the decree of the District Judge isaffirmed and this appeal dismissed with costs. We assess the hearing fee at onegold mohur.

9. Similar orders will be drawn up in each of the otherappeals which will consequently be dismissed with costs, one gold mohur in eachcase.

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Loke Nath Singh and Ors.vs. Gaju Singh and Ors.(19.08.1915 - CALHC)