The starting point of limitation for execution of a decree under Article 182, Clause (2) of the Limitation Act is the date of the appellate court's decree, regardless of the character of the appeal or the parties to it.

JUDGMENT-This is an appeal filed by the original defendant No.2, who was the judgment-debtor, and by the surety, against an order passed by the Civil Judge, Senior Division, Sholapur directing the darkhast filed by the decree-holder to proceed. The facts giving rise to this appeal are that some time in the year 1951, a decree was passed in favour of respondent No.1 for possession and for mesne profits, and appellant No.2 stood surety in regard to the decree for possession when the stay of execution was granted. In execution of that decree possession was taken by the decree-holder On June 15, 1968. On September 22, 1959 a final decree for mesne profits was passed against the original defendants Nos. 1,2 and 3, as well as original defendant No.5. As against original defendants Nos. 1, -2 and 3, the decree for mesne profits was for the specific sum of Rs. 1,657.12 in respect of the period for which they were in possession viz., from September 14, 1949 to March 16, 1951, and for interest. As against original defendant No.5, the decree for mesne profits was for the sum or Rs. 10,177.91 for the period from March 16,1958 to June 15, 1958 for which he had been in possession, and for interest. Against that decree, defendant No.5 alone filed an appeal, being First Appeal No. 849 of 1959. On September 10, 1960, Special Darkhast No. 77 of 1960 was filed by the decree-holder against defendant No.5, which was executed on December 22, 1960 even before defendant No. 5s First Appeal No. 849 of 1959 was dismissed on March 9, 1966. On September 24, 1962 Special Darkhast No. 69 of 1962 was filed by the decree-holder against the present appellant No. I (original defendant No.2) and the surety, but the Same was not prosecuted and was dismissed on October 25, 1963, the question of limitation being kept open. On October 14, 1966, Special Darkhast No. 52 of 1966 was filed by that: decree-holder against both the present appellants viz., the original defendant No.2 and the surety. The appellants contended that the darkhast was barred by limitation, but the learned trial Judge, after considering the authorities cited before him came to the conclusion that the darkhast was not barred by limitation and, on August 7, 1967, he passed an order that the darkhast should proceed: It is from that order that the present appeal has been preferred by the appellants.

2. It is common ground that the present case is governed by the Indian Limitation Act, 1908, and it cannot be disputed that the final decree for mess profits being a decree passed on September 22, 1959, execution would be barred by limitation, unless the decree-holder is entitled to avail himself of the provisions of clause (2) of Article 182 of the Limitation Act, so that the starting point of limitation would be, not the date of the decree for mesne profits, but the date of the dismissal of defendant No. 5s appeal, being First Appeal No. 849 of 1959, which was March 9, 1966.

3. The first authority which was cited before me by the learned advocate for the appellant was the decision of a Division Bench of this Court in case of Kalyanchand v. Bhogilal1, which, according to the learned advocate, is clear authority for the proposition that where an appeal is filed by one defendant, and the decree is sought to be executed against another defendant or other defendants, limitation must run from the date of the decree of the trial Court. I am afraid, however, the decision in Kalyanchands case is of no assistance for the purpose of the present case, in so far as the Court was not concerned in that case with Article 182 of the Limitation Act, 1908, or with interpretation of the terms of clause (2) of that Article, with which I am concerned in this case. In Kazyanchands case the only question which arose was, what was the starting point of the limitation for the purpose of section 48, which it may be stated, provides an outer limit of time for applications for execution of decree, other than the decrees of charter

Click Here to Read the rest of this document