JUDGMENT
Ramabhadran, J.C.
1. In this appeal by judgment-debtors against the order of the Subordinate Judge, Mandi, rejecting their objections under Section 47, C. P. C., learned counsel urges that the pending execution petition is time-barred and the finding of the Court below to the contrary is erroneousr
2. To understand the point at issue, the following facts may be stated: Lalman (the respondent here) filed a suit against Brikam Das, Mayadhar (father of the appellants) and one Ramditta, Mal for the recovery of Rs. 8,250/-, with interest. The suit was dismissed as against Ramditta Mal on 23-10-1992 B., presumably, under Order 1, Rule 10, C. P. C. The suit then proceeded against the remaining defendants. On 13-12-1992 B., the latter made a statement, admitting the plaintiff’s claim, and, thereupon, a decree was passed against them on the same day for Rs. 8,250/-, plus interest and costs. It would appear that the plaintiff, being aggrieved by the order dated 23-10-1992 (dismissing the suit as against Ramditta Mal), went up in appeal to the Ijlas-i-alia of Mandi. That appeal was rejected on 28-5-1999 B.
3. The point for determination, therefore, is whether limitation for executing the decree against the appellants started running on 13-12-1992 B., when the decree was passed against them, or on 28-5-1999 B., when the Ijlas-i-alia dismissed plaintiff Lalman’s appeal and upheld the trial Court’s order, dismissing the suit so far as it lay ‘against Ramditta Mal.
4. The Court below, relying upon–‘Nagendra
Nath v. Suresh Chandra, AIR 1932 PC 165 (A) and– ‘Nacharainmal v. Veerappa Chettiar’, AIR 1946 Mad 231 (B), held in favour of the decree-holder. Learned counsel for the appellants argued –and, in my opinion, with justification–that the facts of the present case are clearly distinguishable from those of the two rulings cited above. In AIR 1932 PC 165 (A), the facts were that an application, purporting to be an appeal from the order of the Subordinate Judge, was presented to the High Court and in that appeal only the other decree-holders were joined and not the judgment-debtors. The appeal was dismissed on the ground of irregularity and also on merits. Subsequently, an application, by way of execution, was made to the Subordinate Judge and the question arose whether the so-called appeal, preferred to the Calcutta High Court, was an appeal within the meaning of Article 182, Col. 3, para, 2. The Subordinate Judge answered the question in the affirmative. An opposite view was taken by the High Court, which dismissed the execution application. When an appeal was taken to His Majesty, their Lordships of the Privy Council held that: “There is no warrant for reading into the words ‘where there has been an appeal, any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. So long as there is any question sub judice between any of the parties, those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor pre-
judiced. He may indeed obtain the booth of delay, which is so dear to debtors. Hence, the contention that an appeal in order to save limitation under Clause 2 of the Article, must be one to which the persons affected were parties and that it must also be one in which the whole decree was imperilled, is not sound.”
In AIR 1946 Mad 231 (B), the facts were that on 1-12-1922, the Subodinate Judge of Dindigul granted a conditional decree for possession of the suit property. On 28-9-1926, that decree was confirmed, subject to a modification with regard to the amount payable under the decree. Both sides appealed to the High Court. Both the appeals were rejected on 21-11-1930. On 13-8-1942, the decree-holder filed an application for execution. Objection was taken in the executing Court to the effect that the petition was time-barred. The objection was overruled by the Subordinate Judge and his decision was upheld by the District Judge. Then, there was an appeal which was rejected by a learned single Judge of that High Court. Then, there was a Letters Patent appeal, which was heard by a Division Bench. That appeal was also rejected ana in doing so, Leach C. J., and Lakshmana Rao J., observed as follows:
“Where an appellate Court passes a decree it takes the place of the decree of a trial Court, and it is the decree of the appellate Court only which becomes capable of execution, consequently the period of 12 years under Section 48 commences from the date of such appellate decree and not from the date of the decree of the trial Court.” (5) I have given the facts of the above two rullings in some detail to show that the facts of the present case are completely different. Here, as already stated, one of the defendants, namely, Ramditta Mal, was discharged on 23-10-1992 B. and the suit as against him was dismissed. Therefore, he was not in the picture, at all, when the consent decree was passed against the remaining defendants on 13-12-1992 B. The appeal to the Ijlas-i-alia was against the order of 23-10-1992 B., i.e., whereby the suit was dismissed as against Ramditta Mal. There was and there could have been no appeal against the decree of 13-12-1992 B., because that was a consent decree and under Section 96 (3), C. P. C., no appeal lay from a consent decree. -Learned counsel for the resppndent argued that the decree of 13-12-1992 B. is not a consent decree. If this is not a consent decree, I fail to see what other kind of decree it can be. Learned counsel for the contesting respondent drew my attention to the memorandum of appeal, preferred to the Ijlas-i-alia on 21st Phagun, 1992. In that appeal, Brikarn Das and Om Chand and Prakash Chand, sons of Mayadhar (the present appellants), have been cited as respondents. It was, therefore, suggested that the appeal to the Ijlas-i-alia was, in fact, an appeal against the decree dated 13-12-1992 B. This contention, obviously, cannot hold water and for two reasons; In the first place, the appeal is styled as one from the decree passed by the District Judge of Mandi on 23rd Poh, 1992. As already stated, the only decree passed on that day was the decree dismissing the suit as against Ramditta Mal. The decree against the other defendants was passed some
.
two months later. In the second place, from a perusal of the grounds of appeal, it is manifestly, clear that Lalman’s grievance was that Kamditta Mal had been wrongly exempted from liability. No further relief was claimed as against Brikam Das, Om Chand and Prakash Chand.
6. It would, therefore, be wrong to say that the appeal was directed against the decree of 13-12-1992. I, therefore, find considerable force in the argument of the learned counsel for the appellants that, as far as the present appellants are concerned, limitation started on 13-12-1992, when the consent decree was passed against them, and not on 28-5-1999, when Lalman’s appeal, against the order exempting Ramditta Mal from liability, was rejected.
7. Learned counsel for the appellants cited the following rulings in support of his arguments: (1) –‘Nandlal Saran v. Dharam Kirti Saran’, AIR 1926 All 440 (C). There, the decision by the Division Bench was:
‘Where an appellate decree either affirms, modifies or reverses the decree of the trial Court, the period of limitation will begin from the date of the decree of the appellate Court; but where an appeal does not lie, e.g., from a decree passed from an award, but an appeal is preferred and dismissed as no appeal lay, the order of dismissal is not a decree, affirming the decree of the trial Court and, therefore, time runs from the date of trial Court’s decree.”
(2) ‘Kalyan Chand Lalachand v. Bhogilal Joya-chand’, AIR 1923 Bom 400 (D). Here, the facts were that the plaintiff filed a suit in 1905 against the five defendants. A decree was passed in March 1907 against defendants 1 to 4, but the Suit was dismissed as against defendant 5. Against that order of dismissal, the plaintiffs appealed, but without success. It was held by a Division Bench of the Bombay High Court that:
‘That a Darkhast filed after 12 years of March
1907 but within 12 years of the appellate Court’s
decree, was time barred as against defendants
1 to 4.”
(3) ‘D. M. Jacinto v. J. D. B. Fernandez’, AIR 1939
Bom 454 (E). There, the decision was: ‘ The words ‘where there has been an appeal’, in the last column of Article 182, mean an appeal from the decree sought to be executed, and not an appeal from another decree, though made in the suit. Hence, where in a suit for partition of immovable property, part of it being house property, and part of it being property subject to assessment to Government revenue, a final decree is passed as to the property assessed to Government revenue and subsequently, a final decree is made in respect of the house property, from which there is an appeal, an application, for execution relating only to property assessed to Government revenue, made within three years of the disposal of the appeal, but much more than three years after the date of the final decree relating to property assessed to Government revenue, is barred under Article 182.”
8. For reasons given above and in view of the authorities cited, I am of the view that the finding of the Court below on the point of limitation cannot be upheld. The present execution petition was instituted on 16-1-53. Obviously, more than 12 years after the decree in question was passed.
9. During arguments, some doubt was expressed whether the present appeal would be competent, in view of the fact that the execution proceeding arose out of a consent decree. Reference was made to –“Tota Ram v. Shibban Lal’, AIR 1932 Lah 416 (F), where a single Judge of that High Court held that:
“An application in execution proceedings is included in the term ‘suit’ in Section 9, Specific Relief Act, and an appeal to the District Judge, from an order of the executing Court is incompetent. Therefore, an order passed by the District Judge in appeal on an order made by the executing Court on an application for execution of a decree obtained under Section 9 is without jurisdiction.
It was argued that on the same analogy no appeal lay from an order passed, while executing a consent decree. No direct authority on this point was, however, cited. Even if we assume for the sake of argument, no appeal lies, it is still open to this Court, in the exercise of its revisional jurisdiction, to interfere where, as in this case, it is abundantly clear that the execution petition was beyond time.
ORDER
10. The result is: I allow this appeal, set
aside the order of the Court below and dismiss
the pending execution petition as time-barred. The
appellants will get their costs of appeal from the
contesting respondent.
