Decided on April 05,1957



- (1.) THIS is an appeal under Clause 10 of the Letters Patent and arises in execution proceedings. The only point that requires determination in this appeal is one of limitation. The facts relevant for deciding this question are not in dispute and may be stated as follows:--
(2.) DURING the pendency of cross-suits in the Court of Subordinate Judge, Gujranwala, the parties harkishan Das Chawla and Kirpal Singh referred their disputes to arbitration on 10th October, 1945. On some date not clear on the record an award was made under which Chawla became entitled to recover Rs. 7,000/- from Kirpal Singb. Chawla sought to get the award made rule of the Court. Kirpal Singh filed objections to the award but they were dismissed on 19th November, 1946. A decree in accordance with the award was passed on 30th November, 1946. Kirpal Singh filed an appeal on 14th January, 1947, in the Lahore High Court under section 39 (vi) of the arbitration Act against the order of 19th November, 1946, refusing to set aside the award. He, however, did not file any appeal against the decree passed on 30th November, 1946, for Rs. 7,000/ -. The appeal of Kirpal Singh was dismissed by the Lahore High Court on 6th February, 1948, for default of appearance by both parties. The decree-holder then made an application for the execution of the decree dated 30th November, 1946, in the Delhi Court on 14th August, 1950. The judgment-debtor pleaded that the application was barred by time under Article 182 (1)of the Indian Limitation Act and the decree-holder in reply pleaded that the limitation started from 6th February, 1948, when the Lahore High Court dismissed his appeal. The plea of the judgment-debtor was upheld by the executing Court but on appeal a Single Judge of this Court came to the conclusion that Article 182 (2) applied to the case and the limitation started from the date of dismissal of appeal by the Lahore High Court. The judgment-debtor has filed the present appeal. It is common ground between the parties that if limitation starts from 30th November, 1946 (the date of the decree for Rs. 7,000/-) then the present application for execution is barred under clause (1) of article 182 of the Indian Limitation Act. It has been contended before us inter alia on behalf of the judgment-debtor that the execution application in question is not governed by clause (2) of Article 183 firstly because no appeal was filed against the decree that is now sought to be executed and secondly because the appeal was dismissed in default by the High court and not on merits. The contention of the learned counsel for the decree-holder in reply is that Clause (2) of Article 182 covers cases in which an appeal imperils partly or wholly the decree sought to be executed provided the order or decree appealed against arises out of the same proceedings as is the case in the present appeal. As regards the second point of the judgment-debtor the reply of the decree-holder is that when an appeal is dismissed under Order 41, Rule 17 of Civil Procedure code, then the order of dismissal is a judicial order and the order or decree of the lower Court merges into that of the appellate Court and limitation starts afresh for execution of the decree. I shall first take up the second objection as It is comparatively ample. It is urged on behalf of the judgment-debtor that when an appeal is dismissed in default then it cannot be said that the appellate Court has passed any final order or decree which, can as such be executed. The argument is that an order under Order 41, Rule 17 of the Code of Civil Procedure is an administrative order and not a judicial order leaving the order or decree of the lower Court untouched or, in other words, the order or decree appealed against does not merge into the order or decree of the appellate Court. In support of this contention the learned counsel has invited our attention to Chandri Abdul Majid v. Jawahir Lal, I. L. R. 36 All. 350 : (AIR 1914 PC 66) (A), batak Nath v. Mt. Munni Dei, I. L. R. 36 All. 284: (AIR 1914 P. C. 65) (B), and Sachindra Nath roy v. Maharaj Bahadur Singh, I. L. R. 49 Cal 203: (AIR 1922 PC 187) (C ). These decisions, however, relate to the order of dismissal passed by their Lordships of the Privy Council in appeals filed before them and are based on the rules framed by them on 15th June 1853. These rules inter alia provide "and that in default of the appellant or his agent taking effectual steps for the prosecution of the appeal within such time or times respectively the appeal shall stand dismisssed without further order and that a report of the same be made to the Judicial committee by the Registrar of the Privy Council at their Lordships' next sitting. " In these rules of 1853 there is no rule corresponding to Order 41, Rule 17, Civil Procedure Code. It is, therefore, clear that under the rules of the Privy Council a dismissal in such circumstances was not an order passed by the Judicial Committee exercising judicial functions but by the registrar of the Privy Council in the exercise of administrative powers. On the basis of these rules the observations made in I. L. R, 36 All 350: (AIR 1914 PC 66) (A) were quoted with approval in I. L. R. 49 Cal 203: (AIR 1922 P. C. 187) (C), relating to an order passed by the Privy council in 16th April, 1910. This observation reads-"the order (i. e. , the formal order) dismissing the appeal for want of prosecution, and not deal judicially with the matter of the suit, and could in no sense be regarded as an order adopting of confirming the decision appealed from. It merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the position as if he had not appealed at all". It was in these circumstances that it was held that under the Indian Limitation Act the period of three years named in Article 182 began to run from the date of the decree appealed against and not from the date of the dismissal by the appellate Court for want of prosecution. The Judicial committee has changed its rules in 1924 and Rule 36 has been introduced corresponding to order 41, Rule 17, Civil Procedure Code, and no judgment of the Judicial Committee has been brought to our notice in which it has been" held that after 1924 the order of dismissal under rule 36 is not judicial order. It is true that following I. L. R. 36 All 350: (AIR 1914 P. C. 66) (A) and ILR 36 All 285 : (A IR 1914 P. C. 65) (B), Bhide J. In Secretary of State v. Mt. Reshmo, AIR 1936 Lah 479 (D), has laid down that an order under Order 41, Rule 17, Civil Procedure Code, is not a judicial order for the purpose of Article 182. But with great respect I am unable to accept the correctness of this conclusion. Apparently a decision of the Division Bench of that Court in Bank of Upper India v. Srikrishan Das, AIR 1935 Lah 771 (E), was not brought to the notice of the learned Judge. In that case it was held that an order under Order 41, Rule 17, Civil Procedure Coda is a judicial order and is a final order dismissing the appeal within Article 182 of the Indian Limitation Act. A similar view has been taken in Ram Kumar v. Chaube Rudra Dutt, AIR 1951 All 493 (F ). It was observed by their Lordships of the Privy Council in Abdulla Asghar Ali V. Ganesh Des Vig air, 1933 P. C. 68 (G ). "their Lordships think that when an order is judicially made by an appellate Court, which has the effect of finally disposing of an appeal, such an order gives a new starting point for the period of limitation prescribed by Article 182 (2), of the Act of 1908. " these observations, in my opinion, fully apply to the present case of dismissal in default although they were made in a case in which the appeal has been dismissed as having abated. I am, therefore, clearly of the opinion that where an appeal is dismissed in default then it is a final order under Article 182 of the Indian Limitation Act and affords a fresh starting point for execution. In this view of the matter this argument of the learned counsel fails and is rejected.
(3.) THIS brings me to the main contention raised in the present appeal. Article 182, clauses (1) to (4) read -"description of suit. For theexecution oi a decree or order of any Civil Court not provided for by Art. 183 or hy s. 48 of the Codeofcivil procedure, 1908. Period of limitation. Three years or where a certifiedcopy of thedecree has been regis-tered, six yenrs. Time from which pe-riod begins to run. 1. The date of the decree or order, or 2. (Where there has been ah appeal)the dateor the final the Appellate court, or the withdrawal the appeal, or 3. (Where there has been a review of judgment) the date of the decision pass. ed on the review, or or 4. (Where the decree the date of amend-ment, or". Clause (2) has led to considerable conflict in decisions but no useful-purpose will be served by discussing these cases in detail or by treating the matter on historical basis. Both sides before us have placed their reliance mainly on the decisions given in Nagendra Nath Dey v. Suresh chandra Dey, AIR 1932 P. C. 165 (H), and in Bhawanipore Banking Corporation Ltd. v. Gouri shankar, AIR 1950 S. C. 6 (I ). It may be stated here that these decisions have failed to resolve the conflict existing in various Courts but the weight of authorities now is in favour of the contention of the judgment-debtor.;

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