STATE Vs. HINDUSTAN CONSTRUCTION AND CO

JUDGEMENT

(1.) What is the true con-nection of word "Appeal" in Art. 182 of the Limitation Act ? Does it mean an appeal against the actual decree sought to be execut-ed or any appeal apart from that whether it affects the decree or not. How about a decree portion whereof only has been appealed against. What would be the starting point of period of limitation for execution of portion of decree not appealed against. ?

(2.) These interesting, though complicated, questions arise in this appeal, which is directed against the order of executing court (Addl. District Judge, Jammu) dated 31.x.81 allowing respondent's (decree holder's) exe-cution application. From the record it trans-pires that an award was passed in arbitration proceedings initiated by the respondent-contractor. It was partly decreed by this court on 31-12-1975 directing recovery of Rupees 1,09,159.49 with 6% interest from the appel-lant (judgment-debtor). Respondent felt ag-grieved as his two claims (No. 2 and 55) had been disallowed and filed LPA No. 7 of 1973 against the decree which was dismissed on 31-12-1975. Continuing the battle respondent again moved the Hon'ble Supreme Court in S.L.F. which is pending. Meanwhile, the Company filed an execution application for recovery of decretal amount on 23-7-1979 which was dismissed in default on 28-3-1981. It filed second application for execution on 13-5-1981 and it was resisted on the grounds that it was time-barred as the first application was so and that it was not in conformity with mandatory provisions of Order XXI Rule 11 CPC. The executing court overruled the objection holding that first execution appli-cation could not be said to be barred by time due to pendency of respondent's SLP in the Supreme Court in which final decree had yet to be passed. This appeal is directed against the order in a bid to persuade this court to hold otherwise.

(3.) Before adverting to rival contention, it would be appropriate to make a brief refe-rence to provisions of Art. 182 of the Limita-tion Act. Clause (1) of this Article provides for three years period of limitation from the date of decree or order for making an execu-tion application. Clause (2), however, lays down that where there has been appeal, three years from the date of final decree or order of the appellate court or the withdrawal of the appeal. Therefore, the present controversy turns on the interpretation of clause (2) and particularly the import of word "appeal" used therein.