V.D. Bhargava, J. - (1.) This a judgment debtor' execution second appeal. The facts of this case are that there was a decree passed on 14 -5 -1945, by the Addl. Munsif for injunction and removal of certain construction and demolition of Gulawar. Against that order the Defendants appealed. The decree was maintained in part but as regards the demolition of constructions over certain plots of land a sum of Rs. 25, as damages, was awarded. The Defendants accepted the decree, but the Plaintiffs came to this Court in second appeal against the order refusing demolition over certain plots and awarding compensation. That second appeal was dismissed on 22 -3 -1950. The present execution application was filed on 1 -9 -1950. An objection was raised that this application was barred by limitation but that did not find favour with the appellate court and hence this appeal.
(2.) The Learned Counsel for the Appellants has argued that so far as the decree, which was against him, about removal and demolition of Gulawar was concerned, had become final on 14 -5 -1946. He submitted to that decree and there was no appeal as against that part of the decree. The appeal was only against the compensation allowed against him by the Appellant and, therefore, qua that portion of the decree, which was not the subject matter of the appeal in the High Court, the period of limitation should be calculated from 14 -5 -1946. Learned Counsel for the Respondents argues that there was only one composite decree and if there is an appeal against that decree though it may be only against a part, the provisions of Article 182 sub Cl. (2) will be applicable as there is no qualification attached to be word 'appeal' mentioned in the said Article. He has placed reliance on the case of Nagendra Nath Dey and Anr. v/s. Suresh Chandra Dey and others : AIR 1932 PC 165
(3.) From the perusal of that judgment of the above cited case, it appears that there had been a conflict of authority on this matter. Allahabad Madras, Bombay and Patna had taken one view, while other courts had taken a different view. In Nagendra Nath's case of the Privy Council it was urged that the benefit of Cl. (2) could not be given for three reasons. Firstly, the appeal was not a regular bona fide appeal but could only be termed as an abortive attempt to appeal. The second ground was that the appeal should be against the persons affected and if the judgment debtors, against whom the execution was sought later on, were no parties to the appeal, benefit could not be given to the decree holder, and lastly it was urged that the appeal must be one in which the whole decree should be imperiled, meaning thereby that if the appeal is not against the whole decree but against a part, the benefit of Article 182 could not be availed of by the decree holder qua the execution of that part of the decree against which no appeal was filed.;