NARAYAN GANPAT MAHAJAN Vs. RADHABAI KRISHNAJI MAHAJAN
HIGH COURT OF BOMBAY
NARAYAN GANPAT MAHAJAN
RADHABAI KRISHNAJI MAHAJAN
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Barlee, J. -
(1.) [ His Lordship after dealing with matters not material to this re. port, proceeded:] The last point in this case is about limitation. The decree was passed in 1927 and it gave Radhabai a recurring right. She has tried in 1933 to execute it and prima facie she has lost three years' maintenance by her laches, since the claim for maintenance for 1927, 1928 and 1929 is more than three years old. But Mr. Manerikar relies on the proceedings subsequent to the decree to bring this application within time. There was an application for review, which was granted, and then there was an appeal against that order in review, and there was an order made by this Court in appeal on November 9, 1932. If the darkhastdar, Radhabai, can take advantage of these proceedings, then she is in time.
(2.) THE question is whether she is entitled to the benefit of Clauses 2 and 3 of Article 182. Clause 3 runs- Where there has been a review of judgment the date of the decision passed on the review, and Clause 2 Where there has been an appeal the date of the final decree or order of the Appellate Court. Mr. Manerikar's case is that there was a review, and after that there was an appeal, and therefore it is the final decree of the appellate Court which furnishes the starting point of limitation. Mr. Adarkar has argued that there was no review; that there was merely an application for review of the judgment, but that the judgment was not reviewed. THE learned advocate points out that in review matters there are two stages:-First of all an application is made; that is heard and an order is passed under Rule 4 rejecting it or allowing it; and, then, according to the learned advocate, the judgment is actually reviewed. This interpretation of the article does not seem to me to be correct. THE starting point of limitation under Sub-rule (3) is the order passed on review, and the only orders under review contemplated by Order XLVII are those under Rule 4, made in what Mr. Adarkar calls the first stage, and the words in Article 182 (3) presumably apply to such orders, and orders made in appeal against such orders. Whether the application be rejected or allowed there can be no other order in the review proceedings. If the application be rejected, there can be none; if it succeeds, either an obvious mistake is corrected at once, or the suit is re-opened for the reception of additional evidence. In the latter case only is there what Mr. Adarkar calls a second stage; but the subsequent orders are orders in the suit. My view then is that the words 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. THErefore, the terminus a quo is the date of the decision of this Court, which reversed the decision of the Subordinate Court to grant a review.
Mr. Adarkar has contended that an appeal of this nature from an order granting review is not an appeal which comes within Sub-clause (2) of Article 182. The learned advocate has cited a Madras case in Ahammad Kutty v. Kottekkat Kuttu (1932) I. L. R. 56 Mad. 458, but that case was concerned with appeals from preliminary and final decrees and does not touch the point with which I have to deal. The case which binds me is the decision of our own Court in Nagappa Bandappa v. Gurushantappa Shankarappa (1932) I. L. R. 57 Bom. 388 : S. C. 35 Bom. L. R. 432 where it was decided that Sub-clause (2) of Article 182 does not refer exclusively to appeals against a decree. The decision was based on the Privy Council case of Nagendra Nath Dey v. Suresh Chandra Dey (1932) L. R. 59 I. A. 283 : S. C. 34 Bom. L. R. 1065, where their Lordships, in discussing the meaning of this article, held that the question must be decided upon the plain words of the article, and that " where there has been an appeal of any sort, " time is to run from the date of the decree of the appellate Court. Here, then, on the plain words of the article the appellant must fail, because it is beyond doubt that there has been an appeal, though not an appeal against the original decree, and, therefore, time runs from the final decree of the appellate Court, which in this case is the date of the order in the review matter.
For these reasons the appeal must fail and is dismissed with costs. .;
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