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1932 Supreme(SC) 23
PRIVY COUNCIL [ON APPEAL FROM THEEAST INDIES]
LORD BLANESBURGH, LORD TOMLIN, LORD RUSSELL OF KILLOWEN, SIR GEORGE LOWNDES, AND SIR DINSHAH MULLA.
NAGENDRA NATH DEY - Appellant
Versus
SURESH CHANDRA DEY - Respondents
On appeal from the High Court at Calcutta.
Decided On : Apr. 21. 1932.
Solicitors for appellants: Watkins & Hunter.
Solicitors for respondents Nos.1 to 4: Chapman-Walker & Shephard.
Under Article 182 of the Indian Limitation Act, 1908, any application to an appellate court to revise or set aside a decision constitutes an "appeal," regardless of irregularity or the parties involved, meaning the limitation period for execution runs from the appellate court's final decree.
Headnote:(A) Indian Limitation Act, 1908 - Schedule I, Article 182 - Execution of decree - Limitation period - Calculation of time where an appeal has been filed - The phrase "where there has been an appeal" means any application by a party to an Appellate Court asking it to set aside or revise a decision of a subordinate Court, regardless of whether such an application is irregular or incompetent.
(B) Construction of limitation provisions - Strict grammatical meaning of the words is the only safe guide - Equitable considerations are out of place in construing such provisions.
(C) Scope of appeal for limitation purposes - No warrant for reading into the statute any qualification as to the character of the appeal or as to the parties to it; the limitation period runs from the date of the final decree or order of the Appellate Court if an appeal has been filed, even if not all affected parties were joined or the entire decree was not imperilled.
Facts of the case:
A final mortgage decree was passed by a subordinate court. A party filed an appeal against the decision, which was irregular in form and insufficiently stamped. The appellate court dismissed the appeal. Subsequently, an application for execution of the decree was filed. It was contended that the application was barred by limitation as the appeal was irregular and the judgment-debtors were not parties to said appeal.
Findings of Court:
The application for execution was within time as the limitation period began to run from the date of the decree of the appellate court.
Issues: Whether an irregular appeal, in which not all affected parties were joined, constitutes an "appeal" within the meaning of Article 182 of Schedule I of the Indian Limitation Act, 1908, for the purpose of calculating the limitation period for the execution of a decree.
Ratio Decidendi: The court ruled that the words "where there has been an appeal" must be given their plain and ordinary meaning. Any application to an appellate court to set aside or revise a decision is an appeal, and its irregularity or incompetence does not disqualify it from being an appeal for the purpose of extending the limitation period. The statute does not require that all affected parties be parties to the appeal or that the entire decree be challenged.
Result: Appeal allowed.
Legal Category Hierarchy
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practice and procedure
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limitation
- execution of decrees
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appellate procedure
- nature of appeals
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limitation
Judgement
Appeal (No. 84 of 1928) from a decree of the High Court (February 16, 1926) reversing an order of the Subordinate Judge of Hooghly (August 4, 1924).
The sole question for determination was whether, as held by the High Court (Suhrawardy and Graham JJ.), an application for the execution of a decree was barred by the Indian Limitation Act, 1908, Sch. I., art. 182.
The facts, and the terms of the above article, appear from the judgment of the Judicial Committee.
The appeal was argued in April, 1931, but was ordered to be re-argued.
1932. Feb. 25, 26. De Gruyther K.C. and Jinnah for the appellants.
Narasimham and Subba Row for respondents Nos. 1 to 4.
[Reference was made to authorities reviewed in the judgment of Graham J. in Dewan Abdul Alim v. Abdul Hakam (( 1926) I. L. R. 53 C. 901.); also (for the respondents) to Kotaghiri Venkata Subbama Rao v. Vellanki Venkatarama Rao (( 1900) L. R. 27 I. A. 197.) and to Order xxxiv., rr. 4 and 5.]
April 21. The judgment of their Lordships was delivered by
SIR DINSHAH MULLA. This appeal raises a question as to the construction of art. 182 of Sch. I. of the Indian Limitation Act, 1908.
In a suit brought many years ago for partition of certain properties held jointly by the parties to this appeal and their predecessors, a receiver was appointed with power to raise a loan on the security of a mortgage of the properties. The receiver borrowed Rs. 18,000 from some of the co-sharers, and on July 10, 1894, he executed a mortgage of the properties in their favour. Amongst the mortgagees were Nagendra Nath Dey and Pulin Behari Dey, who are the appellants before this Board, and Madan Mohan and his son, who are respondents Nos. 24 and 27 respectively. The position at that date was that some of the co-sharers were mortgagees and all the co-sharers were mortgagors.
In 1907, after the shares of the several co-sharers in the partition suit had been allotted to them and the receiver discharged, Madan Mohan and his son instituted the suit out of which the present appeal arises in the Court of the Subordinate Judge of Hooghly to enforce the mortgage. In this suit Madan Mohan claimed that the appellants (defendants Nos. 11 and 12) had assigned their interest in the mortgage to him. The Subordinate Judge upheld his claim, and, after taking accounts between the parties, passed a preliminary mortgage decree declaring (inter alia) the liability of the appellants to pay a sum of Rs.4467, which they accordingly brought into Court.
On appeal to the High Court at Calcutta a compromise was effected between the parties, and on June 10, 1913, a preliminary decree in supersession of the decree of the Subordinate Judge was passed by the High Court in terms of the compromise.
Under this decree Madan Mohans claim against the appellants was disregarded, and the appellants were shown as mortgage-creditors for Rs. 14,615-15-3. The appellants thereupon applied to the Subordinate Judge for the withdrawal of the Rs.4467. Madan Mohan opposed their application, reasserting his former claim, but his contention was overruled, and the appellants were allowed to withdraw their deposit. Madan Mohan appealed to the High Court, but his appeal was dismissed.
In the preliminary decree as passed by the High Court the co-sharers were ranged into two groups, one of decree-holders consisting of six sets of co-sharers, and the other of judgment-debtors consisting of eight sets of co-sharers. After the date of the decree two out of the eight judgment-debtors paid the amount due from them under the decree. The rest did not pay, and on June 4, 1916, Madan Mohan applied to the Subordinate Judge for a final mortgage decree. In his application he again claimed that the appellants had assigned their interest in the mortgage to him, and prayed that an order should be made to that effect. On June 24, 1920, the Subordinate Judge delivered his judgment, disallowing Madan Mohans claim, and a final decree was passed for the sale of the mortgaged pr
