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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
B.A. Khan, J.
State - Appellant
Versus
Hindustan Construction & Co. - Respondent
CIMA No. 85/1981
Decided On : 10 July, 1992
LIMITATION ACT, 1963 - SECTION 182 - INTERPRETATION - APPEAL - MEANING - EXECUTION OF DECREE - STARTING POINT OF LIMITATION - PENDING APPEAL - EFFECT.
Fact of the Case:
An arbitration award was partly decreed by the High Court. The decree holder filed an execution application, which was dismissed in default. A second execution application was filed, which was resisted on the ground that it was time-barred. The executing court overruled the objection and allowed the execution application.
Finding of the Court:
The court held that the word "appeal" in Article 182 of the Limitation Act, 1963 means any application, even in the shape of revision or review, seeking to set aside, reverse or vary a decision of the court. The appeal need not be directed against the real and original decree. But so long as it has the potential of effecting the decree sought to be executed some way, it will be an appeal within the meaning of Article 182(2). The appeal must effect the decree sought to be executed. If it does not, it will not fall within the purview of Article 182(2). It is immaterial whether the appeal is filed against a part of the decree or against the whole decree. In either case, the limitation prescribed by Article 182(2) will run from the date of the final appellate decree. In other words, Article 182(2) does not envisage bisection of the decree.
Issues: 1. What is the true connotation of the word "Appeal" in Article 182 of the Limitation Act? 2. Does it mean an appeal against the actual decree sought to be executed or any appeal apart from that whether it effects the decree or not? 3. How about a decree portion whereof only has been appealed against? 4. What would be the starting point of the period of limitation for the execution of a decree not appealed against?
Ratio Decidendi: The court relied on the following principles: 1. The word "appeal" in Article 182(2) means any application, even in the shape of revision or review, seeking to set aside, reverse or vary a decision of the court. 2. The appeal need not be directed against the real and original decree. But so long as it has the potential of effecting the decree sought to be executed some way, it will be an appeal within the meaning of Article 182(2). 3. The appeal must effect the decree sought to be executed. If it does not, it will not fall within the purview of Article 182(2). 4. It is immaterial whether the appeal is filed against a part of the decree or against the whole decree. In either case, the limitation prescribed by Article 182(2) will run from the date of the final appellate decree. In other words, Article 182(2) does not envisage bisection of the decree.
Final Decision: The court held that the limitation for execution of the decree in the present case will run from the date of the decision in the SLP and till then execution proceedings taken by the respondent in respect of the part decree shall remain in abeyance and await the outcome in the SLP.
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 respondents (decree holders) execution application. From the record it transpires 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 Rs. 1, 09,159.49 with 6% interest from the appellant (judgment-debtor.) Respondent felt aggrieved as his two claims (No: 2 and 55) had peen 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 Honble Supreme Court in SLP 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 application 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 reference to provisions of Article 182 of the Limitation Act. Clause (1) of this Article provides for three years period of limitation from the date of decree or order for making an execution 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 withdrawal of the appeal. Therefore, the present controversy turns, on the interpretation of clause (2) and particularly the import of word appeal" used therein.
4) Mr. Thakur LC for appellant says that appeal; as contemplate by Article 182 means only that appeal which effects the decree sought to be executed. If the appeal is made in respect of an ancillary matter and there is no chance of the result reflecting or impinging upon the decree sought to be executed, it is not covered by the Article. Proceeding on this premise he admits that decree under execution had become executable on 25-7-1973 when it was passed as no appeal had been filed against it and at worst on 31-12-1975, when it was affirmed and respondents LPA dismissed. Even if limitation be taken to run from the date of appellate decree, respondents first execution application admittedly filed after the expiry of three years was time-barred and so was the second application and there was no question of pending SLP before the Supreme Court furnishing any starting point for the limitation. He derived support from AIR 1941 Madras: 40.
5) Mr. Gupta, on the other hand argued that Art. 182 does not envisage bisection of the decree. Where there is an appeal whether against part or against whole decree limitation will run from date of appellate decree, which in this case would be the decree to be passed by the apex court ultimately. The pendency of appeal, according to him, only suspends period of limitation and does not debar execution which the decree-holder was free to take meanwhile He relied upon AIR 1954 Madras : 170 and Full Bench judgment of appellate Civil Court in Krishname Charior Vs. Mangamal (AIR-1926 Madras 91), in support of his conte
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