HIGH COURT OF KERALA
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(1.) This appeal was referred to a Full Bench by the following order of reference:
This execution appeal raises an interesting question of limitation not covered by any decision here or elsewhere.
On 10.7.1946 the District Court of Trivandrum passed a decree in favour of the respondent for a portion of the claim put in suit. He sought leave to prefer an appeal to the High Court in forma pauperis against the disallowed portion of the claim. That was not allowed and the order refusing leave was passed on 31.3.1950. However time was given for payment of the requisite court fee and that was extended more than once. The respondent did not avail of the concession and his last application for further extension of time was dismissed on 3.7.1950. Thereafter on 4.9.1950 the execution petition giving rise to this appeal was filed and the judgment debtor (the State) contended that the execution was barred by time as the applicatory provision was Clause. (1) of Art. 166, Travancore Limitation Act and not Clause.(2) as contended for on behalf of the decree holder. The lower court accepted the decree holders contention and held that the execution was not barred by limitation. The State has preferred this appeal and it was strenuously argued on its behalf that the lower courts decision is clearly wrong.
As stated earlier there is no direct authority bearing on the point but decisions favouring the opposing views can be found in the books. Some cases brought to our notice held that the order refusing leave to file the appeal in forma pauperis amounts to a decree. See for instance AIR 1936 Mad. 101 . A view is seen held in some cases that the words where there has been an appeal in relevant clause of the Article only mean where a memorandum of appeal has been presented in court and that it need not necessarily mean an admission thereof. See ILR 16 Cal. 250. Whether after granting time for payment of court fees, the final rejection can be made by a single Judge is also debatable. See AIR 1935 All. 620 (F.B.). At the same time there are authorities which say that Clause. (2) of the Article can apply only when an appeal has been admitted and not otherwise. See AIR 1934 Mad. 303 ; AIR 1938 Cal. 533 and AIR 1951 All. 79 (F.B.).
"In view of these conflicting opinions and in the absence of any direct ruling on the question we think it proper to place this case for decision by a Full Bench of this Court and we order accordingly.
(2.) The question for decision in the appeal is whether it is Art. 166(1) of the Travancore Limitation Act (Art. 182(1) of the Indian Limitation Act) or Art.166(2) - Art.182(2) - that will apply to the case. If Art.166(1) applies the period of limitation will have to be calculated from the date of the decree of the District Court, i.e., from 10.7.1946. If Art.166(2) applies the period will have to be calculated from the date of the final decree or order of the High Court. Art.166(2) will apply if there has been an appeal from the decree of the District Court. If has, therefore, to be decided whether there has been an appeal in this case.
(3.) What happened in the case was this:- The plaintiff applied in the High Court under O. 43 R.1, Travancore Code of Civil Procedure (O.44 R.1, Indian Code) on 29.11.1123 for permission to appeal as a pauper from the decree of the District Court. A memorandum of appeal was also filed along with the application, as required by O.43 R.1 (O.44 R.1). Copies of the judgment and decree of the District Court were also produced along with the memorandum of appeal. The application was disallowed by the High Court by its order dated 31.3.1950; but the applicant was allowed time to pay the requisite court fee. The order which was passed by a Single Judge of the High Court was to the following effect:-
Heard both sides. On perusing the judgment, I do not see that it is erroneous or unjust or against law. The permission sought for to file the appeal in forma pauperis is refused and the petition is dismissed. But if the appellant will pay the court fee due by 30th the June 1950 this will be registered and numbered as an appeal. He will not get any extension of time.
On 21.6.1950 the plaintiff applied for further time to pay the court fee. The application was dismissed on 22.6.1950. A second application for the same purpose was made on 30.6.1950 and that also was dismissed on 3.7.1950. The memorandum of appeal was not registered or numbered but no order was passed rejecting it. The question is whether, in the circumstances, it can be said that there has been an appeal from the decree of the District Court. If it is held that there has been an appeal the appeal must be deemed to be pending even now unless the order dated 3.7.1950 refusing the prayer for extension of time for payment of court fee has the effect of dismissing the appeal.;
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