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Letters Patent Appeal No. 54 of 1963, decided on 2nd May 1967.

Art. 182 Execution application returned to decree‑holder‑Decree‑holder entitled to get advantage of filing such application‑Execution application remains pending so long as no final order disposing it judicially has been passed‑Subsequent application is only for revival of previous application and, therefore, not barred by Art. 182.

Where the application for execution of a decree is returned to the decree‑holder, the decree‑holder would be entitled to get the advantage of filing the execution application. It is a well settled rule of law that an execution application must be deemed to be pending so long as no final order disposing it of judicially has been passed thereon. A subsequent application in such a case for execution will be deemed to be one merely for the continuation of the original proceedings.

This principle has also been, applied in cases where the application is dismissed or struck off or consigned to the record room or returned. Such order is not to be regarded as finally disposing of the petition and a subsequent application will be regarded as one of revival and continuation of the original proceedings.

Held, therefore, that the execution application filed by the decree‑holder in 1962 was a continuation of application filed by them in 1959 and, for this reason, the execution application was not barred by Article 182 of the Limitation Act.

Qamar‑ud‑Din Ahmed v. Jawahirlal 32 I A 102 and kilshna machari v. Chengalraya Naidu A I R 1910 Mad. 281.

, Art. 181(2)‑Preliminary and final decree‑Starting tima for application for execution in case of appeal ‑ from preliminary decree‑Date of disposal of appeal.

An appeal against a preliminary decree involves an appeal against the final decree which follows that preliminary decree. Though the terminology gives an impression that there are two decrees, the correct legal position is that there is only one decree in a suit in the sense that it is the expression of an adjudication determining the rights of the parties with regard to all matters in controversy in the suit. A preliminary decree is merely a stage in working out the rights of parties which are finally determined by the final decree. An appeal against a preliminary decree would be an appeal within the meaning of the word "appeal" in clause 2 of col. 3.

Cases in which appeal ii filed against a preliminary decree and during the pendency of the appeal a final decree is passed stand on a different footing altogether. In the third column Article 182 provides "(where there has been an appeal) the date of the final decree or order of the appellate Court, or the with drawal of the appeal". It is unnecessary to paint out that a decree is preliminary when the suit is still to be completely disposed of. It becomes final when such adjudication completely disposes of the suit. It can therefore be said that final decree merely carries out the fulfillment of a preliminary decree passed in the suit. If an appeal from the preliminary decree succeeds, the final decree automatically falls to the ground for the reason that it is based on the preliminary decree, and is merely a super structure upon it which must fall when the base is taken away. In such cases, therefore the date on which the decision is given by the appellate Court would furnish the starting point of limitation under the above‑mentioned Article.

Held, therefore, that the period of limitation in the present case started from the date of the decision of the Supreme Court in the appeal filed against the preliminary decree by the judgment -debtors and that the second execution application filed by the decree‑holders was within time.

Nagendra Nath Dey and another v. Suresh Chandra Dey and others A I R 1932 P C 165 ‑rel.

Rai Brijraj v. Nauratan Lal 3 P L J 11.9 ; Sivaramachari v. Anjaneya A I R 1951 Mad. 962 ; . Somarsingh v. Deonandan Prasad A I R 1928 Pat. 581 ; Ramesh Chandra v. Seth Ghanshiam Dass A I R 1955 All. 552 Bank of Upper India Ltd. v. Sri Krishan Das and others ; A I R 1935 Lah. 771 and P. P. Kayakutti and others v. Veerankutti A I R 1937 Mad. 421 ref.

Kirpal Shah Sant Singh v. Shri Harkishan Das Narsingh Dav A I R 1957 Punj. 273 distinguished.

A I R 1948 Bom. 337 ; Commilla Banking Corporation Ltd. v. Nanda Kumar Bhattacharjee P L D 1951 Dacca 130 ; (Vadlamannati) Bala Tripura Sundaramma v. Abdul Khader A I R 1933 Mad. 418 ; A 1 R 1950 S C 6 and A I R 1951 Pat. 1 considered.

Khalid M. Ishaque assisted by M. G. Dastagir for Appellant.

Z. A. Mehkari for Respondents.

Date of hearing : 2nd May 1967.

.‑This is a Letters Patent Appeal from the order of a learned Single Judge in Execution No. 16 of 1963 which arose out of Suit No. 103 of 1944. By this order the learned Court held that the above execution application filed on behalf of the decree‑holders was not barred by Article 182 of the Limitation Act.

2. 'Briefly the facts giving rise to this appeal are that deceased Agha Mir Yakub Shah represented by Respondents 1 to 4 and Syed Muhammad Shah represented by Respondents 5(a) to 5(h) and Mir Sulaiman Shah, Respondent No. 6 filed Suit No. 103 of 1944 against Agha Mir Ahmed Shah, Mst. Amir Begum and Bashir Ahmed for possession and mesne profits of a plot of land with‑bungalow thereon bearing Survey No. 7/1 Sheet F. T. No. 2, known as Farhat Manzil situated on Mcneil Road in the Frere Town Quarter of Karachi and plot of land with two bungalows thereon bearing Survey No. 9 Sheet F. T. 4 situated on Bath Island Road, Frere Town, Karachi. On 19th March 1948 a preliminary decree was passed on the original side of the Chief Court of Sind for possession of Mary Road property and mesne profits from 31st May 1935. The defendant's first appeal No. 12. of 1948 filed on 21st May 1948 was dismissed by a Letters Patent Bench on 13th September 1956 subject however to an order that the mesne profits will be determined for a period of three years prior to the filing of the suit. The matter was taken to the Supreme Court and the appeal filed by the respondents was dismissed on 9th October 1961.

3. In the meanwhile on the 25th August 1958 a final decree was passed by this Court on its original side for a sum of Rs. 47,897‑2‑6 for mesne profits for the period commencing from 16th March 1941 to 30th,November 1951 ; the date on which the property for which the decree for possession was passed was delivered to the decree‑holders. No appeal was filed from the final decree. On 4th September 1959, an execution application was filed but no effective order was passed on it. After the disposal of the appeal filed in 'the Supreme Court the decree -holder filed the above‑mentioned execution application on 12th November 1962. The appellant raised objections that it was barred by limitation under Article 182, but Anwarul Haq, J. by order dated 1st June 1963, held it to be within time. The learned Single Judge held that the limitation in the case before him would run from the decision of the Supreme Court and counting from that date, the execution application filed in November 1962, was clearly within time. He therefore overruled the objections of the judgment‑debtor on the question of limitation. The appel lant's judgment‑debtors have challenged this order in this Letters Patent Appeal.

4. It will be noticed that in the execution application filed in November 1962, the decree‑holder in column 6 has stated as under: -----

Thus the case of the respondent decree‑holders was Shat they had filed an execution application before the one filed in 1962 which was not proceeded with. At the hearing before the learned Single Judge the decree‑holders raised a point that they had filed a previous application in the year 1959, that is well within time, from the date of the final decree of the High Court. But that application had become infructuous due to the appeal having been taken to the Supreme Court and, therefore, it was not pressed. These facts were disputed by the appellant judgment- debtors and the learned Single Judge did not consider it necessary to examine this question in view of his decision regarding the application of clause 2 of Article 182 of the Limitation Act. In our opinion the point raised by the respondent decree‑holders on this aspect of the case is of great importance and if a decision is given in their favour on this point it, would bee unnecessary to consider the effect of clause.2 of Article 182 of the Limitation Act on the execution application presented by the decree‑holders in November 1962. We would, therefore take up this point before considering the other objections raised by the judgment -debtors on which an adverse finding was given against them.

5. In this connection it will be noticed that from the record of the execution proceedings it is quite clear that the respondent decree holders presented an application for execution on 4th September 1959, on which no order was passed by the Court and it remained pending with the execution branch. From the endorsement on the balk of this application it appears that on 30th January 1960, 'D' Branch was asked to send the record of the original suit. On the duplicate application there is an endorsement that the suit received from 'D' Branch was returned without any date. It will be further noted that this application was also supported by an affidavit dated 3rd August 1959, and was‑presented through Mr. Z. A. Mehkari, the learned counsel for the respondents. Mr. Khalid Ishaque, the learned counsel for the appellant, has contended that the appellant had no opportunity to meet this point and for its determination the case should be sent back for enquiry. He also pleaded no instructions on this point. In our opinion the contention of the learned counsel for the appellant in this respect is without any substance. The point under consideration was specifically relied upon by the respondent decree holders and the appellant had ample opportunity to meet it. The facts involved are very simple. It cannot be denied that the respondent decree‑holder moved execution application on 4th September 1959. The only point that was urged before us by Mr. Khalid Ishaque was that this application was returned and, therefore, it can have no bearing on the question whether the execution application filed in 1962 was within time or not. Assuming for the sake of argument that this execution application was returned to the decree‑holder even then it would not make much difference, because the decree‑holier would be entitled to get the advantage of filing the execution application in 1959. It is a well settled rule of law that an execution application must be deemed to be pending so long as no final order disposing it of judicially has been passed thereon. A subsequent application in such a case for execution will be deemed to be one merely for the continuation of the original proceedings. In this connection the Privy Council in Qamar‑ud‑Din Ahmed v. Jawahirlal (32 I A 102) observed as under:‑‑

Their Lordships are of opinion that the execution proceed ings commenced by the petition of the 24th August 1888 were never finally disposed of and that the application now under consideration was in substance, as well as in form, an applica tion to revive and carry through a pending execution, suspended by no act or default of the decree‑holder, 'and not an application to initiate a new one."

In that case an order was made on execution application dated 24th August 1888 to the effect that the property to be sold in execution being ancestral the case should be struck off the file and the papers transferred to the Court of Collector for the completion of the sale proceedings. A further order was later on passed to the effect that if Re. 1 was not paid to the decree‑holder on account of the order for sale or auction the case should not be transferred to the Collector. More than three years after the date of the original application the decree‑holder applied for the revival of the application. Their Lordships held that the application being in continuation of a pending application it was within time. This principle has also been applied in cases where the application is dismissed or struck off or consigned to the record room or returned. Such order is not to be regarded as finally disposing of the petition and a subsequent application will be regarded as one of revival and continuation of the original proceedings. In Krishnamachari v. Chengalraya Naidu (A I R 1940 Mad. 281) restitution petition was returned without any orders being passed on the grounds that execution had been stayed. Petition was held to be pending though not physically in Court. So from whatever angle the execution application is considered the earlier execution application filed by the respondent decree‑holders has an impor tant bearing on the question of limitation irrespective of the fact whether it was returned to the respondent decree‑holder or not. It will not in any way help the appellants because no final order was pass‑d on the application filed in 1959. On the view taken by the Privy Council in the above case it would be treated pending before the Court and the execution ; application filed in 1962 would be treated as an application to revive and carry through a pending execution, suspended by no act or default of the decree holder and not an application to initiate a new one. In that view of the matter the execution application filed by the respondent decree‑holder in 1962 was a continuation of an application filed by them in 1959 and, for this reason, the execution application was not barred by Article 182 of the Limitation Act.

6. On the conclusions that we have reached it is unnecessary to consider the point decided by the learned single Judge, but as the learned counsel for the parties have addressed us at length, we would, in the interest of justice, express our opinion on it. Mr. Khalid Ishaque, the learned counsel for the appellant, has contended that under Article 182(2) of the Limitation Act the fact that the Supreme Court appeal filed against the preliminary decree was dismissed on 9th October 1961, will be of no help to the respondent decree‑holders and the time would not be reckoned from this date for the purpose of finding out whether the execution application filed by them in 1962 was within Limitation or not. The learned counsel contended that the words in column. 3 of this Article under sub‑head 2 "(where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal" is of that decree which is sought to be executed. In support of his contention the learned counsel for the appellant has referred us to:‑---

(1) A I R 1948 Born. 337; (2) P L D 1951 Dacca 130 at p. 139; (3) A I R 1933 Mad. 418; (4) A I R 1950 S C 6; (5) A I R 1951 Pat. 1 and (6) A I R 1957 Punj. 273

On the other hand, Mr. Mehkari relied on a decision of the Privy Council in

(1) A I R 1932 P C 165; (2) A I R 1935 Lah. 771; (3) A I R 1937 Mad. 421: (4) A I R 1951 Mad. 962 at p. 967; (5) A I R 1955 All 552 and (6) A I R 1956 Nag. 200.

7. The latest decision in the Indian Courts on this aspect of the question in Kirpal Shah Sant Singh v. Shri Harkishan Das Narsingh Das (A I R 1957 Punj. 273) has discussed all the decisions cited by the learned counsel for the appellant. It supports his view, it was held by a Division Bench of the Punjab Court that the expression "where there has been an appeal" must be read with the words in column 1 of Article 182, viz. for the execution of a decree or order of any civil Court. It was further held that an appeal has to be filed against the order or decree sought to be executed to give a fresh start. of limitation under clause (2) in col. 3 of Article 18;. An appeal which imperils a decree sought to be executed would not furnish a fresh start of limitation. In that case an appeal was filed against dismissal of objection to an award but no appeal was filed against the decree on award. The appeal was dismissed for default. On these facts it was held that limitation began from the date of the decree and not from the date when the appeal against the dismissal of objections against the award was dismissed for default. In our opinion the principle enunciated in this decision has no application on the facts of the present case. The case close to the facts under consideration is the Privy Council case reported in Nagendra Nath Dey and another v. Suresh Chandra Dey and others (A I R 1932 P C 165). In that case a mortgage decree was passed by a subordinate Court declaring the liability of the appellants to pay a sum of Rs. 4,467 to one Madan Mohan. On appeal the matter was compromised in the High Court and a preliminary decree was passed in terms of the, compromise. Under this a tree Madan Mohan's claim against the appellants was dis regarded and the appellants were shown as mortgage creditors for Rs. 14,615‑15‑3. In the preliminary decree 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 4th June 1916 Madan Mohan applied to the sub ordinate Judge for a final mortgage decree. In his application he again claimed that the appellants had signed their interest in the mortgage to him and prayed that an order should to made to that effect. On 24th June 1920, the subordinate Judge delivered his judgment disallowing Madan Mohan's claim and a final decree was passed for the sale of the mortgaged properties that had come to the share of the remaining six judgment‑debtors. The decree was drawn up on 2nd August 1920, but properly dated as of 24th June. On 27th August 1920, Madan Mohan presented an application to the High Court purporting to be an appeal from the order of the subordinate Judge of 24th June 1920 alleging what was clearly untrue, that no decree had been drawn up. The appeal, though irregular in form, as not being an appeal against the decree of the subordinate Judge and being insufficiently stamped for this purpose, was admitted and heard by the High Court. On hearing the appeal was dismissed both on the ground of irregularity and upon the merits, and the dismissal was embodied in a decree of the High Court dated 24th August 1922. On 3rd October 1923 the appellants presented an application to the subordinate Judge for execution by sale of the mortgaged properties. It was urged before the High Court that the applica tion was barred by limitation because it was presented after three years of the passing of the mortgage decree. It was not disputed that if three years were to be calculated from the date of the decree of the subordinate Judge, that is, 24th June 1920 the application was manifestly out of time, but within time if the crucial date is that of the decree of the High Court of 24th August 1922. In this connection their Lordships observed as under:----

"Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think the plain words of the article: "where there has been. an appeal",

time is to run from the date of the decree of the appellate Court. There is, in their Lordships" opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment‑debtors prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court. But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of 24th June 1920, time only ran against the appellants from 24th August 1922, the date of the appellate Court's decree. They are therefore in agreement upon this point with the subordinate Judge, and they think that the order passed by him on 4th August 1924 was right."

These observations of the Privy Council have been the subject -matter of consideration in this sub‑continent. In the above‑men tioned Punjab case Dishan Naraio; J. distinguished it on the following observations:‑---

"It appears to me that these observations were made not to enlarge the scope of clause (2) but to suggest the ratio for enacting a fresh start of limitation from the order or decree of the appellate Court. That case was in fact decided on the construction of actual words used in this clause after laying down that strict grammatical meanings must be given in the Article and it is further made clear by the observations that "whether there be or be not a theoretical justification for the provision in question" the words of the Article being plain the limitation runs from the time of the appellate Courts' decree. It is difficult to hold that by laying down the strict rule of construction the Privy Council immediately proceeded to adopt and approve of liberal' construction to enlarge the period of limitation."

These observations were made in a case in which an appeal was filed against dismissal of objections to an award but no appeal was filed against decree passed on award. The appeal was dismissed for default, and the decree‑holder claimed that the period of limitation under Article 182 should be counted from the date of dismissal of the appeal for default. Thus there was no direct appeal from any decree. There may be some good ground for conflict of decisions in such cases as to the starting point of limitation under Article 182 of the Limitation Act because it can be argued that on the plain language of Article 182 of clause (2) of the Limitation Act it does not contemplate all appeals which in any way imperil the decree sought to be executed within its ambit. However the cases in which preliminary decrees are passed in mortgage suits, partition suits etc. stand on a different footing from those cases in which appeals are filed against interlocutory orders in the same suit or from appeals against decrees of other suits. It may be stated that a preliminary decree in a mortgage suit or in a partition suit is not executable unless and until it is followed by a final decree. There is ample authority for the proposition that as the final decree would depend upon the preliminary decree, an appeal against the preliminary decree necessarily implies an appeal against a final decree in so far as it depends upon the former. This view was expressed in Rat Brigraj v. Nauratan Lal (3 Pat. L J 119). In that case there was a preliminary decree in a mortgage suit against which there was an appeal to the High Court. During the pendency of the appeal the mortgagee decree‑holder obtained a final decree for sale. The appeal to the High Court against the preliminary decree was dismissed sub sequently. It was held that limitation for execution of the final 3ecree ran from the date of the final disposal of the appeal against the preliminary decree by the High Court. This view was also expressed by Rajamannar, C. J. in Sivuramachari v. Anjaneya (A I R 1951 Mad, 96;). The learned Judge observed:‑--- .

"In some of the cases to which reference has been made above, there was an appeal against the preliminary decree in a mortgage suit and an appeal therefrom; the question was whether for the execution of the final decree in such a case, time could be computed from the date of the disposal of the appeal against the preliminary decree. I am of the opinion that it could be, but not because of the "imperilling" theory. An appeal against a preliminary decree involves an appeal against the final decree which follows that preliminary decree. Though the terminology gives an impression that there are two decrees, I think the correct legal position is that there is only one decree in a suit in the sense that it is the expression of an adjudication determining the rights of the parties with regard to all the matters in controversy in the suit. A preliminary decree is merely a stage in working out the rights of parties which are finally determined by the final decree. An appeal against a preliminary decree would be an appeal within the meaning of the word "appeal" in cl. 2 of col. 3. With respect I agree with the following observations made by Dawson Miller, C. J. in Somarsingh v. Deonandan Prasad A I R 1928 Pat. 581:

"There can be no doubt that the appeal to the High Court from the preliminary decree had it been successful would have had the effect of discharging the final decree passed by the trial Court as well as the preliminary decree. It seems to follow, therefore, as a matter of course that the appeal in this case was not only an appeal from the preliminary decree but an appeal from all that naturally followed by the passing of that decree, namely, the final decree for sale which after all is merely part of the machinery prescribed for carrying out the direction for sale contained in the preliminary decree."

This view was also expressed in an Allababad decision Ramesh Chandra v. Seth Ghanshiam Dass (A I R 1955 All. 552) and Balkishan v. Dhanraj (A I R 1956 Nag. 200).

8. It appears to us that cases in which appeal is filed against a preliminary decree and during the pendency of the appeal a final decree is passed stands on a different footing altogether. In the third column Article 182 provides "(where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal". It is unnecessary to point out that a decree is preliminary when the suit is still to be completely disposed of. It becomes final when such adjuication completely disposes of the suit. It can therefore be said that final decree merely carries out the fulfilment of a preliminary decree passed in the suit. If an appeal from the preliminary decree succeeds, final decree automatically falls to the ground for the reason that it is based on the preliminary decree, and is merely a superstructure upon it which must fall when the base is taken away. In such cases, therefore, the date on. which the decision is given by the appellate Court would furnish the starting point of limitation under the above‑mentioned Article.

9. In the light of the above discussion, we would, therefore, hold that the learned single Judge was perfectly justified in coming to the conclusion that the period of limitation in the present case started from the date of the decision of the Supreme Court in the appeal filed against the preliminary decree by the appellant. Considering the case from this angle, there is not the slightest doubt in our mind that the second execution application filed by the respondent was also within time for these reasons.

10. After carefully considering the arguments of the parties, we are satisfied that there is no force in this appeal which is dismissed with costs.

A. H. Appeal dismissed

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