ABDUL KANI Vs. NANOO
LAWS(KER)-1963-1-33
HIGH COURT OF KERALA
Decided on January 03,1963

ABDUL KANI Appellant
VERSUS
NANOO Respondents


Referred Judgements :-

KOCHUKOSHI VS. KUNJU PILLAI [REFERRED TO]
STATE VS. JOHN MATHEW [REFERRED TO]
NAGENDRA NATH DEY VS. SURESH CHANDRA DEY [REFERRED TO]



Cited Judgements :-

TRIVANDRUM DT CO OPERATIVE BANK LTD VS. THANKAPPAN [LAWS(KER)-1980-3-5] [REFERRED TO]


JUDGEMENT

- (1.)This is an appeal by the plaintiff judgment debtor against the order allowing execution against him for costs allowed to the defendant. The contention is one of limitation.
(2.)The decree in the case is dated 15-11-1953; and the execution petition by the defendant decree holder is dated 5-8-1957. In order to save limitation the defendant relied on an appeal from the decree filed by the plaintiff which had been registered but been subsequently dismissed on 11-7-1955 for non payment of deficit court fee. Both the courts below concurred in holding that, as there was an appeal from the decree and the order thereon was within three years prior to the date of the execution application, the application is saved from bar by Art.182(2) of the Limitation Act.
(3.)Counsel for the appellant contends that under S.32 of the Travancore Cochin Court Fees Act, II of 1125, no document which does not bear the prescribed court fee could be of any validity and therefore the appeal which was insufficiently stamped could not be recognised to save the limitation. The Privy Council had occasion to consider the identical question in Nagendra Nath Dev v. Suresh Chandra Dey ( AIR 1932 PC 165 ) where their Lordships held:
"... 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."

Following the above dictum the Travancore Cochin High Court held in State v. P. John Mathew ( 1955 KLT 471 FB.) and in Korulhu Kochukoshi v. Narayanan Kunju Pillai ( 1952 KLT 423 ) that a memorandum of appeal insufficiently stamped but been registered in the Register of Appeals of the appellate court, as has been done in this case, would be an appeal within the meaning of Art.182(2) of the Limitation Act to give a fresh start for computation of period for limitation. Nothing has been shown by counsel to persuade me to differ from that dictum which is in consonance with the observations of the Privy Council referred to above. The second appeal fails, and is hereby dismissed with costs.

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