LAXMAN GOVINDA Vs. DAGDU SHRIPATI SATALE
LAWS(BOM)-1954-1-10
HIGH COURT OF BOMBAY
Decided on January 19,1954

LAXMAN GOVINDA Appellant
VERSUS
DAGDU SHRIPATI SATALE Respondents


Referred Judgements :-

KURUPAM ZAMINDAR V. SADASIVA [REFERRED TO]
VADILAL V. FULCHAND [REFERRED TO]
MOHAMMAD NAQIR V. ALAUDDIN AHMAD [REFERRED TO]
RAI BRIJRAJ V. NAURTAN LAL [REFERRED TO]
NARAYAN V. RADHABAI [REFERRED TO]
FIRM DEDHRAJ LACHMINARAYAN V. BHAGWAN DAS [REFERRED TO]
BENGALI MAL V. BAIJNATH PRASAD [REFERRED TO]



Cited Judgements :-

RAJAMMA VS. C. V. KOTIAH CHETTY AND CO. [LAWS(APH)-1957-11-41] [REFERRED TO]
GANESH DASS VS. AMAR NATH [LAWS(J&K)-1979-8-3] [REFERRED TO]


JUDGEMENT

- (1.)THIS appeal raises a short question of limitation which arises in this way. A suit (No. 14 of 19411 to recover possession of certain immoveable property was dismissed on 3-9-1945. The plaintiff preferred an appeal against this decree, but the appeal (civil appeal No. 46 of 1946) was also dismissed on 14-8-1946, Thereafter the plaintiff applied for a review of the said- decree (review application No. 10 of 1947 ). On this application, rule was issued, but ultimately it was discharged and the application for review was dismissed on 8-1-1948. The present darkhast application has been filed by the defendant to recover his costs from the plaintiff, and he has been met with a plea of limitation. It is common ground that if the defendant is entitled to exclude the period which was occupied by the plaintiff's application for review, the present darkhast would be In time. On the other hand, if the said period cannot be excluded, then the present darkhast would be barred by time under Article 182, Limitation Act. That is how the only question which arises before us in the present appeal is whether Clause (3) in column 3 of Article 182, Limitation Act, applies to the present case. The executing Court has held that this clause is inapplicable to the present case and has, therefore, dismissed the darkhast as barred by time.
(2.)ARTICLE 182 provides for limitation for the execution of a decree or order of any civil Court not provided for by Article 183 or by S. 48, Civil P. C. The period prescribed is three years and the starting point of limitation in respect of such applications for execution is indicated in column 3 of the article. Clause 3 in column 3 of Article 182 lays down that where there has been a review of Judgment, the starting point of limitation is the date of the decision passed on the review. Mr. Parulekar contends that the words used in this clause are wide enough to Include cases where an application for review has been made and the same has been entertained though ultimately review may have been refused. It would be convenient to refer to the material provisions of Order 47, Civil P. C. in appreciating this argument. Order 47 deals with review. Rule 4, Sub-rule (1), of Order 47, provides that if it appears to the Court in dealing with an application for review that there is not sufficient ground for a review, it shall reject the application. Mr. Parulekar concedes that if an application for review is summarily dismissed at the initial stage under Order 47, Rule 4, Sub-rule (1), the provisions of Clause 3 in column 3 of Article 182, Limitation Act, would not apply. In such a case, the application for review has not been entertained at all and so the extended period is not available to such an application. While dealing with an application for review, Sf the Court is of the opinion that the application for review should be granted, it shall proceed to graftt the same under Rule 4, Sub-rule (2), of O. 47. The proviso to the Sub-rule requires that before the application is thus granted, notice of the application shall be issued to the opposite' party to enable him to appear and be heard in suppprt of the decree or order, a review of which is applied for. Mr. Parulekar contends that as- soon as the Court proceeds to issue and notice under the proviso to Sub-rule (2) of R. 4, It virtually entertains the application, and when the application for a review has crossed this stage, then despite the final order of rejection which may be passed on the application, the benefit of the extended period of limitation under Clause (3) of schedule 3 of Article 182 must be available to the case. Rule 8, Order 47 lays down, that where an application for review is granted, a note thereof shall be made in the register and the Court may at once rehear the case or make such order in regard to the re-hearing as it thinks fit. It would thus be noticed that an application for a review which is made under the provisions of Order 47, passes through three stages. At the first stage, the Court considers the question whether there is any ground prima facie appearing in the application which would justify the issue of a notice to the opponent. If the Court is satisfied that there is not even prima facie ground for issuing such notice, then the application is dismissed and there is an end of the matter. If the Court is satisfied that there are prima facie grounds for entertaining the application, a notice is issued calling upon the opponent to appear, and on hearing the opponent the Court may either grant the review or refuse to grant him. If the application for review is rejected, there is an end of the said application and nothing more needs to be done. That may be regarded as the second stage of the review proceedings. The third stage in these proceedings is reached where on hearing the opponent the Court is satisfied that a case has been made out for reviewing the decree or order, and when the Court comes to this conclusion, the Court makes an order granting review and proceeds to act under Rule 8, Order 47. What follows pursuant to the order, made under Rule 8, Order 47, can be described as the third stage of these proceedings. According to Mr. Parulekar, all cases falling under the second or the third stage of these proceedings are entitled to invoke the benefit of the extended period of limitation in question.
(3.)THE words used in Clause (3) are "where there has been a review of judgment. " According to Mr. Pamlekar, whatever may be the final order passed at the second stage of the review proceedings, there has undoubtedly been a review or reconsideration of the judgment. Mr. Parulekar insists that the words "where there has been a review of judgment" should not be construed in a narrow sense so as to include only such cases where in fact the judgment has been reviewed. In support of this contention, Mr. Parulekar has relied upon a decision of Barlee J. in -- 'narayan v. " Radhabai', AIR 1936 Bom 162 (A ). At the outset, it may be pointed out that Barlee J. was dealing with a case where an application for review had in fact been granted and even on the narrow construction of the material words used in Clause (3), his decision that the benefit of the said clause was available was, with respect, undoubtedly right. But, though on the facts the decision could be supported even on the narrow construction of the material words, it does appear that the learned Judge has made general observations which lend some support to Mr. Parulekar's contention. Barlee J. referred to the stages through which an application for review has to pass and he observed that his view was that the words used In Article 182 (3) "decision passed on review" mean a decision passed in review proceedings and whatever such a decision is, it gives a fresh starting point of limitation. In the case before Barlee J. review" had been granted by the trial Court, there was an appeal against that order and that order had been reversed by the appellate Court and so the learned Judge had to consider even the provisions of Article 182, Sub-clause (2 ). We are not concerned with those provisions in the present appeal.


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