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Petitioner: COMMILLA BANKING CORPORATION, LTD VS Respondent: NANDA KUMAR BHATTACHARJEE
P
P. L. D. 1951 Dacca 130
Before Guha, J.
COMMILLA BANKING CORPORATION, Ltd Opposite Party‑Appellant
versus
NANDA KUMAR BHATTACHARJEE ----Petitioner‑Respondent
Appeal from original Order No. 12 of 1.946, decided on 12th February, 1951.
Limitation Act (IX of 1908). Art. 182 item (2) Col. 3 " Appeal "refers to appeal from decree or order sought to be executed‑Does not include appeal in a collateral proceeding e. g. from an order refusing to set aside ex‑parte decree.
Reading clause (2) along with clause (1) grammatically and considering the whole expression " the date of the decree or order, or where there has been appeal, the date of the final dec ree or order of the Appellate Court", the word " appeal " mentioned in clause (2) in column (3) of Article 182 of the Limitation Act, 1908, refers to an appeal from the decree or order sought to be executed, and to no other appeal, and it does not include an appeal ‑from a collateral proceeding, such as an appeal from an order refusing to set aside an ex‑carte decree. Limitation for an application to execute the decree or order runs from the date of the decree or order sought to be executed.
Case law exhaustively discussed.
Upendra Kumar Roy, Nirmal Chandra Naudi and Birendra Nath Choudhury, for Appellants.
Abinash Chandra Bhattacharyya and Bimalendu Mitra, for Respondent.
GUHA, J.‑This appeal has come up before me on reference under section 36 of the Letters Patent under the orders of my Lord the Chief Justice as there has been a difference of opinion between my learned brothers Ahmad, J. and Ibrahim. J. on a question of law and my learned brothers differ on the interpretation of the expression where there has been an appeal as used in clause (2) of column (3) of article 182 of the Limitation Act.
The facts arising in this case are not in dispute. The appellant decree‑holder Bank got an ex‑carte decree .for Rs. 6649‑14‑0 as in Money Suit No. 3 of 1939 in the Second Court of Subordinate judge at Brahmanbaria in the district of Tippera. The decree -older put the said decree in execution. In the meantime the judgment‑debtor filed an application under O. IX, rule 13 of the Code of Civil Procedure to set aside the ex‑carte decree, being Miscellaneous Case No. 31 of 1940 and that application was rejected on the 6th January, 1941. In the aforesaid execution case some properties of the judgment‑debtor were put up for sale and final order in that execution case was passed on the 28th March, 1941. The order rejecting the application to set aside the ex‑parte decree was confirmed by the Calcutta High Court in First Miscellaneous Appeal No. 161 of 1941 on the 10th January, 1944. The present execution case was filed on the 14th March, 1945, that is, more than three years after the date of the final disposal of the previous execution case on the 28th March, 1941. To that execu tion the judgment‑debtor raised the plea of the bar of limitation under section 47 of the Code of Civil Procedure. The learned Subordinate judge, by his order, dated the 14th July, 1945, held that the execution case was barred by limitation overruling the contention of the decree‑holder that he was entitled to get three years from the date of the order of the High Court in the appeal from the order rejecting the judgment‑debtor's application under O. IX rule 13 Civil Procedure Code. Hence the decree holder has preferred the aforesaid First Miscellaneous Appeal No. 12 of 1946 in the High Court.
The appellant's advocate argued at the hearing of the appeal that the word " appeal " in clause (2) in column (3) of article 182 of the Limitation Act meant and included an appeal from a collateral proceeding such as an appeal from the order refusing to set aside an ex‑pane decree ; while the judgment‑debtor's advocate argued that the word " appeal " in that clause meant an appeal from the order sought to be executed.
My learned brother Ahmad, J. following the decision of their Lordships of the Judicial Committee of the Privy Council in the case of Nagendra Nath Dey v. Suresh Chandra Dey, (1932) L. C. 59 I. A. 283 and the decisions in the cases of Lutful Haq v. Sumbhudin (1881) I. L, R 8 Cal. 248, Narsingh Sevak Singh v. Madho Das, (1882 I. L R. 4 All. 274 ; Firm Dedhraj Lachmi narayan v. Bhagwari Das (1937) I. L. R. 16 Pat. 306 ; Sriramchandra Rao v. Chintamanibhatla v. Venkateswara Rao, A. I. R. (1939) Mad. 157, Narmadabai Naray.anshet v. Hidayat Ali Sahebali, A. I. R. (1949) .Bom. 115 and S. M. Saraswati Dasi v. Dawarik Mandal, 44 C. W. N. 859, which took the " broad view" and not following the other decisions which took the" narrow view " as expressed by my learned brother, has held that the word " appeal " in clause (2) column (3) of Article 182 of the Limitation Act includes an appeal from ,an order rejecting an application to set aside the exparte decree under O. IX rule 13 of the Code of Civil Procedure and in his view the appeal should be allowed and the execution case should proceed in accordance with law. While on the other hand, my learned brother Ibrahim, J. has taken the " narrow, view " and not following the decisions where the " broad view " has been taken, but following the decisions taking the " narrow view " in the cases of Sheo Prasad v. Anrudh Singh (1879) I. L. R. 2 All. 273; Jivaji v. Ram Chandra (1891) I. L. R. 16 B. 123 ; Sukhnandah Singh v. Ramdeyi Kunwarni, A. I. R. (1932) All. 601 ; Roy Brijrai v. Nauratan Lal, (1917) 3 Pat. L. J. 119 ; Fakir Chand Mondal v. Daibi Charan Parni (1927) I.L.R. 54 Cal. 1052 Profulla Kumar Basu v. S. 141. Sarayabala Basu (1930) 35 C. W. N. 135 and Harish Chandra Choudhury v. Dinesh Chandri Choudhury, (1946), 50 C. W. N. 667, has held that the word " appeal " in clause (2), column (3) of Article 182 of the Limitation Act means an appeal from the decree in the original suit and does not include an appeal from an order rejecting an application under O. IX rule 13 of the Code of Civil Procedure to set aside the Ex‑pane decree and in his opinion, the appeal should be dismissed as the petition for execution had been filed more than three years after the final order in the previous execution case.
The matter was then referred to the Hon'ble the Chief justice to appoint a judge under clause 36 of the Letters Patent to decide the point in which the learned judges hearing the appeal had differed, and the matter has thus come up before me for decision.
The point that arises for my consideration is whether the word appeal " in the expression " where there has been an appeal " in clause (2) of column (3) of article 182 of the Limitation Act, 1908, is confined to an " appeal " from the original decree in respect of which the execution is sought for or whether it refers to and includes an " appeal " from an order rejecting an application to set aside the ex parte decree in the original suit, out of which the execution case arises.
Mr. U. K. Roy, learned Advocate for the appellant, after placing before me certain. decisions in support of his contention, and of the view accepted by my learned brother Ahmad, J, has in substance contended that the decision in Nagendra Nath Dey v. Suresh Chandra Dey, (1932) L. R. 59 I. A. 283, has laid down the correct principle, namely, that so long any matter remains sub‑judice between any of the parties limitation for execution is suspended and this question may be in a collateral proceeding aris ing out of the suit and ‑not in a separate proceeding, that the word " appeal " should be taken in the sense in which it has been used by the Privy Council, namely, appeal from collateral proceeding is an appeal within clause (2) of column 3 of Article 182 and " appeal " in column 3 need riot be read necessarily along with column (1) of clauses (4), (5) and (6) ; that " review " in clause (3) has been used in a generic sense and includes an application for restoration and it should not be used in its strict sense and clause (2) is decisive in its language and appeals from proceedings under O. IX, rule 13 and under O. XLI, rule 21 Civil Procedure Code are in collateral proceedings and not in independent proceedings, and that where a decree is appealed against even though the appeal is against a portion of the decree, the whole decree of the first Court is superseded by or becomes merged in the decree of the Appellate Court and so no part of the decree can be held to be separate in existence and hence the time of execution of that part of the decree not appealed against runs from the date of the appellate decree and that is the view which was taken in Gopal v. Gossain (1898) I. L. R. 25 Cal. 594 F. B. and Dewan Abdul Alim v. Syed Abdul Hakim (1926) 31 C. W. N. 262 Mr, Bhattaeliaryya for the respondent on the other hand contends that the view accept ed by Ibrahim, J. is the correct view on principle and he contends generally. that articles in the schedule to the Limitation Act should be read along with section 3, that the 3 columns in Article 182 are to be read together and so the decree that is to be executed is the decree mentioned in the first column, that the theory of imperiling the decree has been impliedly overruled by the Privy Council in L. R. 59 I. A. 283 ; the appeal in clause (2) in column (3),means an appeal from the decree mentioned in column (1) and that the word review does not include a proceeding for restoration and if that was so meant, the expression should have been mentioned in clause (3) and moreover separate periods of limitation are provided for in separate articles in the Act regarding review or restoration.
Article 182 of the Limitation Act, 1908, as amended by Act IX of 1927, so far as it is relevant for the present enquiry runs as follows :
Definition of application.
Period of limitation.
Time from which period begins to run.
" 1.82. For the execu‑ tion of a decree or order of any Civil Court not provided for by article 183 or by , section 48 of the Code of Civil Proce‑ dure, 1908
(V of 1908).
Three years: or where a certified copy of the decree or order has been register‑ ed, six years.
1. The date of the decree or order, or 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, or 3. (Where there has been a review of judgment) the date of the decision passed on the review, or 4. (Where the decree has been amended) the date of amendment, or 5. (Where the application next hereinafter mentioned has been made) the date of (the final order passed on an application made) in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree or order, or 6. (In respect of any amount recovered by execution of the decree or order, which the decree holder has been directed to refund by a decree passed. in a suit for such refund) the date of such last mentioned decree or, iii the case of an appeal therefrom, the date of the final decree of the Appellate Court or of the withdrawal of the appeal, or 7. (Where the application is to enforce any payment which the decree or order directs to be made at a certain date) such date.
By reason of what is stated in column 3 of the Article, the starting point of limitation varies, according as there has or has not been an appeal or a review of judgment or an amendment of the decree. The law of limitation was embodied in Act XIV of 1859. By Act IX of‑ 1871 the whole law as to limitation of suits was repealed. In 1877, the Act of 1871 was repealed and Act XV of 1877 was passed codifying the law as to limitation. By Act IX of 1901,', the law for the limitation of suits and for other purposes has been consolidated and .amended. For the purpose of this case the amendments, made by Act IX of 1927 are relevant and they have been noted in the extracts I have set out above. I may state here that Article 167 (2) of the Act IX of 1871, Article 179 (2) of Act XV of 1877 and article 182 (2) of Act, IX of 1908 are substantially in the same terms. The principles underlying these provisions are two‑fold. One principle, as has been stated by Sir Dinshaw Muila in Nagendra Nath Dey and another v. Suresh Chandra Dey and others, (1932) L. R. 59 I. A. 283 at page 288 is " 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." " The other principle or " narrow view " is that, when, on appeal, the decree or order of a Subordinate Court is affirmed, modified or reversed by the High Court, the period of limitation for an application for execution of the final decree or order is the period of limitation applicable to decrees of the Subordinate Court itself, and of decree of the High Court."
I shall briefly state the history of the legislation, which is interesting. The Legislature in framing Act XIV of 1859 had to deal with two distinct judicial systems‑the one consisting of the Courts of the East India Company or Mofussil Courts and the other, the Courts established in the Presidency Towns and elsewhere by Royal Charter, and administering the law of England subject to certain statutory, exceptions and modifications. The law of limitation that governed the former was to be found in the Regulations which had no force within the Presidency Towns; whilst the law of limitation which governed the latter consisted of the Statutes of James the First, together with such other portions of the Statute Law of England applicable to the subject as had been introduced into India and the general rules touching the effect to be given to the lapse of time which depended on the decisions of the Courts in England. It appears that in dealing with this matter of execution, the Legislature was moved by certain reasons approved by those who were conversant with the administration of Justice in the Mofussil to subject, execution of decrees of the Mofussil Courts, whether of appellate or of original jurisdiction, to the years' limitation ; whilst, on the other hand, being pressed by the weight and value which the law of England gives to a judgment or decree of a superior Court, it prescribed 12 years' limitation for enforcing the decree of the Supreme Courts. Hence the distinction made by the 19th section of the Act prescribing a period of 12 years' limitation for execution of decrees of Courts established by Royal Charter meaning thereby the Supreme Courts in the three Presidency Towns and the same‑ term ‑was to be found in the preamble of Act VIII of 1859 (the Code of Civil Procedure), which when first passed was not intended to have operation in the Supreme Courts ; and by the 20th section of the Act prescribing a period of three years' limitation for application for execution of decrees passed by other Courts.. The two systems of Judicature were subsequently amalgamated and the High Courts were established by Letters Patent under powers given by the 24th and 25th Vict. t. 104 and the 28th Vict. C. 15. The general scheme of the amalgamation was to constitute one general Court, of which the judges sitting in various Divisional Courts were to exercise the functions of both the Supreme Court and the Mofusil Courts (the Sudder Dewanny Adawlut and the Sudder Nizamat Adawlut), all of which were abolished. The powers and jurisdiction of the Supreme Court with slight modifications were transferred to the High Court to be exercised by it as a Court of original jurisdiction and those of the Appellate Mofussil Courts were transferred to it to be exercised by it as an Appellate Court. But the law to be administered by it as a Court of original jurisdiction was substantially that administered by the Supreme Court ; whilst that to be administered by it on appeal from the Mofussil Courts was generally that .of those Courts. The Code of Civil Procedure (Act VIII of 1859) was made the procedure of the Court in its original as well as in its appellate jurisdiction and superseded the procedure which had previously obtained in the Supreme Court. But that Code did not touch the subject of limitation, which continued to be regulated by Act XIV of 1859. The period of limitation of execution of decrees of Mofussil Courts within three years remained as operative after the amalgamation as it was before that event. There was a conflict of decisions on the point as will appear from the observations of the Right Hon'ble Sir James Colvile in Kristo Kinkur Roy v. Raja Burrodacaunt Roy and others (1872) 14 M. I. A. 465 at page 487, where it has been observed that one of the learned judge, who came to the conclusion that the longer of the two periods of limitation (mentioned in the 19th and 20th sections of the Act XIV of 1859) was the period applicable, admitted that his construction " involved consequences absurd in themselves, and, presumably, contrary to the intention of the Legislature." It is therefore clear that in order to put an end to this controversy, section 20 of the Act XIV of 1859 has been repealed and section 167 of the Limitation Act (IX of 1871) has been enacted in .the form in which it appears, in order to make the intention of the Legislature clear and but. for that necessity it might have taken a different form. The reason why in column (3) of Article 167 different starting points for limitation were prescribed was to prevent any argument being advanced that, as the decree of the Subordinate Court merged in or was superseded by the decree of the High Court in appeal, the period of limitation applicable was the period applicable to the decrees of the High Court and not that applicable to the decrees of the Subordinate Courts. The provisions in Article 167 (2) of the Act of 1871 have been re‑enacted ‑in Article 179 (2) of the Act XV of 1877, and substantially the same provisions are to be found in Article 182 (2) of the Limitation Act (IX of 1908) subject to the amend ments made by Act IX of 1927.
In order to interpret clause (2), in column (3) of Article 182 of the Limitation Act, it is necessary to refer to the scheme of the article. In column 3 it provides for seven points of limita tion, out of which 6 and 7 are special cases. The first clause is the simplest case where the starting point of limitation is furnished by the decree itself and clauses 2 to 4 are starting points in cases where either there has been an appeal or the decree is sought to be reviewed and review has been granted or the decree has been amended on an application for amendment and clause 5 refers to a case where there has been an application for execution, or an application for step‑in‑aid of execution. The clauses 2, 3 and 4 therefore contemplate cases in which the decree may be altered upon proper proceedings having been taken for such alteration. Clauses 4 and 5 specifically refer. either to the decree or order sought to be executed, but clauses 2 and 3 do not specifically refer to the decree or order sought to be executed and it need not be held on that ground that the Legislature intended to make any distinction. In the Act of 1877, clause (4) did not find any place but it was added sub sequently and in it the expression used was " where the decree has been amended " just as in clause (5) after the words applica tion for execution or take some step‑in‑aid of execution, the words "of the decree or order" found a place. Now the clauses (2) and (3) are nearer to clause (1) than clauses (4) and (5), and when clause (2) begins with the words " where there has been an appeal" the proximity of these words to the words "the date of the decree or order" in clause (1) is, in my opinion, quite enough to show that the Legislature intended that the ` appeal " meant " appeal from the decree or order " sought to be executed, because there are no other words in clause (2) in the third column of Article 182 or near about it to which the word " appeal " could have reference. The word " appeal ". in my opinion, therefore, must mean an appeal from the order or decree sought to be executed. When I shall refer to the decided cases, it will be seen that this view of mine has been accepted in the largest number of decided cases. The only other interpretation which has been sought to be placed upon the word, namely, appeal which is likely to imperil the decree or order, cannot be given to it without inserting in clause (2) the words " likely to imperil the decree or order " or some equivalent words after the words "appeal ". Secondly, this interpretation is consistent with the scheme of clauses (1) to (5) ; clause (1) having reference to the cases in which (a) the decree or order remains unaltered, because there has been no appeal, no application for review or amendment and (b) there have also been no application for execution or step‑in‑aid of execution ; clause (2) has reference to a .case where there has been an appeal, clauses (3) and (4) refer to cases in which the decree has been altered upon an applica tion for review of or amendment ; and clause (5) refers to the case in which, there has been an application for execution, or step‑in‑aid of execution of the decree. If clauses (3), (4) and (5) have reference to cases where the review, the amendment and the application for execution or the application for a step‑in‑aid of execution are of the decree or order sought to be executed, then clause (2) must have reference to cases in which the appeal referred to is from the decree or order sought to be executed.
The intention of .the law of limitation is, not to give a right where there is not one, but' to impose a bar after a certain period, to a suit to enforce an existing right. Hurrinath Chatterji v. Mohunt Mothoor Mohan Goswasni (1893) L. R: 20 1. A. 183 at page 192 and Lal Khunnilal and others v. Kunwar Gobind Krishna Narain and others (1911) L. R. 38 I. A. 87 at page 102. The purpose of the second schedule of the Limitation Act is only to prescribe the period of limitation for a suit, application or appeal. That appears from the 3rd section of the Act.
It is a well‑settled principle that in construing a statute of limitation, the language used in the statute ought to receive such a construction as the language in its plain meaning imports. Chief Justice Tindal in construing Lord Tenterden's Act in England in the case of Hyde v. Johnson, 2 Bingham's New Cases at page 776 observed: " Where therefore we find in the statute, now under consideration, that it expressly mentions the signature of the party only, we think it a safer construction to adhere to the precise words of the statute, and that we should be legislating, not interpreting, if we extend its operation to writings signed, not by the party chargeable thereby, but by his agent." It has been well‑stated by Mitra in his Tagore Law Lectures, 6th Edition, (1932) Vol. I, p. 255. " A law of limitation and prescription may appear to operate harshly or unjustly in particular cases but where such law has been adopted by the state ..it must, if unambiguous, be applied with stringency. The rule must be enforced even at the risk of hardship to a particular party. The judge cannot on equitable grounds enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it ". In Luchmee Buxsh Roy v. Runjeet Ram Pandey, (1873) L. R. 13 Bengal Law Reports 177 (P. C.) at page 182 it has been held that statute of limitation must receive a construction accord ing to its plain words. In Abhirarf Goswami v. Shyama Charan Nandi and others (1909) L. R. 36 I. A. 148 at page 162 Sir Andrew Scoble observed : " Statutes of limitation like all others, ought to receive such a construction as the language in its plain meaning, imports". In General Accident, Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim, (1940) 67 I. A. 416, Viscount Maugham in delivering the judgment of the Board while construing Article 68 of the Limitation Act observed: " It may be desirable to point out that a Limitation Act ought to receive such a construction as the language in its plain meaning imports. Very little reflection is necessary to show that great hardship may occasionally be caused by statutes of limita tion in cases of poverty, distress and ignorance of rights ; yet the statutory rules must be enforced according to their ordinary meaning in these and in other like cases ". Keeping in view the above principles, I hold that the word " appeal " in clause (2) of Article 182 column (3) must bear its ordinary primary and plain meaning. The word " appeal " has not been defined in the Limitation Act, but it has been used in several articles of the Act. The right of appeal is a creature of statute and it is not in itself a necessary part of the procedure in an action but is the right of entering a superior Court and invoking its aid and interpretation to redress the error of the Court below.…
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