SMT. BAMA SUNDARI BISWAS Vs. JAMINI KUMAR DAS AND OTHERS
HIGH COURT OF GAUHATI
Smt. Bama Sundari Biswas
Jamini Kumar Das And Others
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R.S. Bindra, J.C. -
(1.) This appeal filed by the defendants Bama Sundari Biswas and others on 2 -3 -1970 raises the question whether it is not barred by time although it is directed against the decree dated 3 -4 -1967.
(2.) To appreciate the points canvassed on behalf of the appellants the relevant facts may be briefly stated. Jamini Kumar, the respondent, filed a suit for declaration of his title to certain lands as also for possession of those lands. The trial Court dismissed his suit on 16 -7 -1962. He took the matter in appeal to the District Judge, who allowed the appeal on 1 -9 -1965 on setting aside the judgment and decree of the trial Court. When execution of the appellate decree was sought by Jamini Kumar, it was noticed that the relief for possession of the lands had not been incorporated therein. Jamini Kumar consequently moved an application before the District Judge under Ss. 151 and 152 of the Civil Procedure Code praying for necessary corrections in the judgment and the decree. That application was accepted by an order dated 3 -4 -1967. with the consequence that the judgment and the decree were amended. Aggrieved by that order, the judgment -debtors, the appellants herein, filed a revision petition in this Court. That revision petition was rejected on 4th of December, 1969. It is thereafter that the judgment -debtors hit upon the idea of filing an appeal against the amended decree dated 3 -4 -1967.
(3.) As I found the appeal to be prima facie barred by time, I fixed it for hearing on the point of limitation. It was claimed on behalf of the appellants by Shri M.R. Chodhury, their learned counsel, that the period of limitation for filing an appeal against the amended decree passed by the District Judge would begin to run from 4th December, 1969, when this Court rejected the revision petition. Article 116 of the Limitation Act provides that an appeal to the High Court from any decree or order, under the Code of Civil Procedure, 1908, shall be ninety days and it shall begin to run from "The date of the decree or order". Assuming that the decree for the purposes of Article 116 is the decree which was amended by the District Judge on 3 -4 -1967, and not which he had earlier passed on 1 -9 -1965, the period of ninety days expired sometime in the month of July. 1967. Therefore, the appeal filed on 2 -3 -1970 appears apparently to be hopelessly barred by time. However, Shri Choudhury endeavored to get over the hurdle by contending that the date of the amended decree should be taken as the one, on which the revision petition was. rejected by this Court, viz., 4th of December. 1969. He was unable to cite any authority in support of that contention and was fair enough, at the same time, in conceding that despite his efforts he had not been able to lay hand on any reported case, one way or the other, bearing on the point in issue. However, he cited the cases of Nagendra Nath v/s. Ambika Charan, : AIR 1929 Cal 676 and Aditya Kumar v/s. Abinash Chandra. : AIR 1931 Cal 323 and urged that the propositions enunciated therein lend weight to his contention though somewhat indirectly.
I have gone through the two authorities very carefully but regret to state that they are clearly distinguishable, being concerned with altogether different topics, and so nothing said therein lends weight to the proposition canvassed by Shri Choudhury. In the case of Nagendra what happened was that a final mortgage decree was passed on 10th October, 1971, and the decree -holder presented an application on 8th of April, 1919, praying for quite a few amendments. That application was allowed and the decree amended. The judgment -debtor filed an appeal against the amended decree. His appeal was partly allowed inasmuch as one of the amendments granted on 8th of April 1919 was disallowed by the first appellate Court. The second appeal to the High Court by the judgment -debtor was rejected on 24th of July, 1924. The first application for execution was presented by the decree -holder on 18th November. 1925. It was contended by the judgment -debtor that that application was barred by time. Repelling that contention, the Calcutta High Court held that the correct date for determining the time of limitation under Article 182 was 24th July, 1924, the date on which the second appeal against amended decree was dismissed by the High Court. This finding was rested on the principle that for execution purposes an appeal by itself never operates as a stay since the right to execute the decree accrues the moment the decree is passed, but if there is an appeal, the time of limitation for an execution application is postponed and does not run until the decree determining the appeal is made. The High Court observed further that the broad principle in India as regards execution matters is that time for an execution application is not computed from the date when the right to apply for execution accrues but is postponed in cases where there is an appeal.
Another pertinent observation made by the High Court was that upon strict construction of Art. 182 or in principle the case of an appeal from amended decree is in no way different from the case of an appeal from any other decree and that as in the other case, appeal from an amended decree postpones the date from which limitation runs for execution purposes. It Is evident from the facts of the reported case and the observations made therein that the High Court dealt only with the point whether there is any distinction between an original decree and the amended decree in the matter of postponement of the date from which limitation runs for execution purposes in case of an appeal, and the reply given was in the negative. The High Court was not called upon to decide whether the period of limitation for filing an appeal against the amended decree is postponed until a revision filed against that decree is decided by the High Court. Hence, that case is of no help in deciding the point that calls for determination in the instant appeal.;
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