Nundun Lall vs Rai Joykishen And Ors. on 25 April, 1889

Calcutta High Court
Nundun Lall vs Rai Joykishen And Ors. on 25 April, 1889
Equivalent citations: (1889) ILR 16 Cal 599
Author: T A Gordon
Bench: Tottenham, Gordon


Tottenham and Gordon, JJ.

1. The question in this appeal is whether execution of the decree, obtained by the plaintiff-appellant against the respondents, is barred by limitation.

2. The case is governed by Article 179 of the second schedule of the Limitation Act. The decree was passed in the Court of First Instance on the 14th September 1881. The case came up ultimately on second appeal to the High Court, and the High Court’s decision, Secretary of State v. Nundun Lall I.L.R. 10 Cal. 435, was passed on the 18th January 1884. Applications for execution were made in July and December 1886. Article 179, Clause 2, provides that, where there has been an appeal, the date of the final decree or order of the Appellate Court is the date from which limitation begins to run.

3. Upon the face of the proceedings, this application would appear not to be barred by limitation; but the Lower Appellate Court, upon consideration of various authorities cited by it,-cases in the Calcutta High Court and in that of Allahabad,-has come to the conclusion that, as against the present respondents, execution of the decree is really barred. For it seems that the present respondents were not parties to the appeal from the Subordinate Judge’s decision, dated the 14th September 1881.

4. It was contended that, as against them, the appeal preferred by another defendant would not have affected the decree; and therefore as against these respondents the decree was really final when it was allowed to go by them without an appeal.

5. The suit was one for partition of certain lands. The present respondents intervened in that suit, and were made defendants upon the plea that no partition could take place, because they had julkar rights over the land in question which, they said, was submerged by water. Another party to the suit was the Secretary of State for India. His defence was that the land in question did not belong to the estate of the plaintiff, and be also contended that no partition could be made.

6. It may be that he intended to contend only that no partition could be made by the Collector under the butwara law; but at any rate he contended that no partition could be made, and alleged that the land did not belong to the plaintiff’s estate. The decree was in favour of the plaintiff, and the Secretary of State was the only party who appealed. In the High Court his appeal was practically successful, so far as Government was concerned, -that is, the High Court was of opinion that the land could not be partitioned under the butwara law by the Collector, though it could be partitioned under the Code of Civil Procedure, and the Secretary of State was discharged from the suit with his costs.

7. We are asked, upon the circumstances of the case, to hold that Article 179 of the schedule of the Limitation Act should not be applied literally to this case, but should be modified in the sense in which it has been modified already in certain cases in the Calcutta and Allahabad High Courts. Those cases are Hur Proshad Boy v. Enayet Hossein 2 C.L.R. 471, Sangram Singh v. Bujharat Singh I.L.R. 4 All. 36, Hingan Khan v. Ganga Pershad I.L.R. 1 All. 293, and Raghunath Pershad v. Abdul Eye I.L.R. 14 Cal. 26. On the other hand, we have been referred to cases in this Court and in the High Court of Allahabad in which the decisions favour the appellant’s contention in the present case. Those cases are Gungamonee Dassee v. Shib Sunkur Bhultacharjee 3 C.L.R. 430, Muttick Ahmed Zumma v. Mahomed Syed I.L.R. 6 Cal. 194, and Basani Lal v. Najrminnissa Bibi I.L.R. 6 All. 14. In one of these cases, namely Gungarnonee Dassee v. Shib Sunlcur Bhultacharjee 3 C.L.R. 430, the Judges went entirely upon the words of the article, and it seems to us that, in a question of limitation, we ought to abide as strictly as possible by the terms of the law. We should not be disposed to import into the law any further restrictions, as to the rights of parties to sue and to execute their decrees, than the law itself expressly provides; but we are hound to recognise the fact that the law has been by interpretation, so to say, modified by decisions of this Court and the High Court of Allahabad. If therefore those cases were on all fours with the present one, we should feel bound to follow the decisions, unless we thought it right to refer the matter to a Full Bench. But we think that the present case does not come exactly under the rule laid down in those cases. In those cases in which execution was held to be barred as against parties who were not parties to the appeal, the decision rests expressly upon the ground that the appeal made by one did not and could not affect the decree as against others of the parties concerned in the case. In one case a former Chief Justice, Sir Richard Couch, in delivering judgment, said that the decree being against various parties for various reliefs in reality amounted to several decrees, although embodied in one paper. The rule governing this decision appears to be shortly this, that unless the whole decree was imperilled by the particular appeal which was preferred, the decision in the appeal would not alter the period of limitation in respect of execution of the decree as between other parties to the suit. In the present case we think that the whole decree was imperilled by the Secretary of State’s appeal. Had he succeeded fully in maintaining his contention, namely that the land aid not belong to the plaintiff’s estate, his appeal would have been decreed, and as a matter of course practically the result would have been that the plaintiff’s suit would have been dismissed; and he would have been precluded from executing any decree as against the present respondents. We are not bound, and we have no inclination to introduce into the limitation law any restrictions further than those which have been adopted by this Court on previous occasions. We think that the present case does not come within the further restrictions which we have mentioned, and that, upon the face of the proceedings and of the law, the execution in question is not barred.

8. That being so, we decree this appeal, setting aside the order of the lower Appellate Court and restoring that of the first Court, with costs.

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