1. These are decree-holders' appeals arising out of execution proceedings. Of the two decrees which are sought to be executed one was obtained on 29-5-1941 and the other on 26-9-1947. The defendants applied for setting aside these decrees. The applications were dismissed for default. Therefore some fresh applications were made and the restoration proceedings remained pending till the 20th January 1951, when the restoration applications were finally rejected.
2. The decree-holders then applied for execution. One of these applications was made on 1-7-1951 and in respect of the other decree the application for execution was presented on 2-7-1951. The decree-holders prayed for attachments in both these cases. The judgment-deb-tors filed objections and the main objection which has now come up for consideration is that the execution applications were barred by time. The executing court upheld the objection and dismissed the applications as barred by time and the decision was upheld in appeal by; the lower appellate court.
3. Learned Counsel for the appellant contends that inasmuch as the judgment-debtors filed applications for setting aside the ex parte decree they substantially moved the court to review, its judgment and the order passed by the court declining to set aside the ex parte decree was the order passed on review, within the meaning of Article 182, clause (3) of the Indian Limitation Act. Article 182 of the Indian Limitation Act, which lays down the period of limitation as three years for execution of decrees mentions in varying circumstances different dates from which time would begin to run. Ordinarily the period of three years provided in the article begins to run from the date of the decree or order sought to be executed. Clause (3) says:
“(Where there has been a review of judgment) the date of the decision passed on the review.”
4. The argument pressed by learned Counsel is that when the judgment-debtors applied for the setting aside of the ex parte decree they did nothing more or less than to pray that the court should be pleased to examine the decree and set it aside. This request by the judgment-debtors for an examination of the decree and for setting it aside was in substance a request made to review the judgment that had been passed ex parte and the period of limitation therefore should run when the court after considering the matter of reviewing the judgment had declined to set the ex parte decree aside. Reliance is placed by learned Counsel on a decision of the Patna High Court infirm Dedhraj Lachminarayan v. Bhagwan Das, AIR 1937 Pat 337 (A). That was a case in which the suit had been dismissed by the trial court on 8-1-1931. On 7-8-1931 the appeal was allowed and the suit, was decreed by the first appellate court. Thereafter the defendants made an application under Order 41, Rule 21 of the CPC on 27-8-1931. This application was rejected by the appellate court on 18-11-1931. Against this order an appeal was preferred to the High Court which was dismissed on 1-9-1933. The decree holders then applied for execution on 15-11-1934.
5. Thus, the application was more than three years after 27-8-1931, when the decree had been passed in the suit and the question which came up for consideration before the Patna High Court was whether an appeal against the rejection of the application under Order XLI, R. 21 having been dismissed on 1-9-1933 the application for execution was within time. The matter was considered in a Letters Patent Appeal by a Bench consisting of Courtney-Terrell, C.J and James, J. The learned Chief Justice took the view that there was no essential difference between orders for restoration and orders for review. In the course of the judgment he observed:
“Notwithstanding the heading in O. 47, the matters dealt with in that order are reviews for which applications are made on certain specified grounds and it is true that in common parlance the term “review is used for applications based upon the grounds specified in that Order. No Court, having once passed a judgment can alter the terms of that judgment save upon certain specified grounds and one of those grounds is dealt with under the term ‘restoration’.
In both cases however, the Court has first to decide whether on the ground specified, it is justified in law in reconsidering its own decision and it either allows or refuses the application for reconsideration. In some cases after the decision to reconsider it may be necessary at a subsequent and separate hearing to deal with the fresh case on its merits. In some case the matter is dealt with at the same hearing and in one judgment the Court decides firstly whether the case should be reconsidered and secondly the result of its reconsideration. But all cases in which the Court reconsiders its own judgment are cases of review within the meaning of Clause (3) of Article 182, Limitation Act.”
6. With great respect it appears that the attention of the learned Chief Justice was not invited to the fact that, while in the case of a ‘review’ the Court has to examine the judgment itself and has to consider the propriety or other wise of varying or setting aside the judgment on merits, in a ‘restoration’ case the Court has to consider not the merits of the judgment itself but the sufficiency or otherwise of the case put forward by the applicant as a ground for setting aside the ex parte decree. In the latter case the judgment is not reconsidered.
7. What the Court examines is the reason which is adduced by the applicant for vacating the entire decree. The Indian Limitation Act and the Code of Civil Procedure both are parts of the law of procedure and were enacted by the legislature in one and the same session. The fact, therefore that review and restoration applications have been separately treated in both these enactments cannot be ignored. The expression ‘review of judgment’ is used in Sections 5 and 12 and in several articles of the Indian Limitation Act such as Articles 161, 162 and 163, and there is no reason to suppose that the words ‘review of judgment’ used in these provisions have different meaning than that which they have under O. 47 of the CPC. The question came up before the Patna High Court again in 1941 in Mohammad Naqir v. Alauddin Ahmad, AIR 1941 Pat 213 (B) and firm Dedhraj's case (A) was cited. Fazl Ali, J. observed:
“If we had been of the view that the present case is fully covered by ILR 16 Pat 306 : (AIR 1937 Pat 337) (A), we would have referred this appeal to a larger Bench because both my learned brother and I are agreed that some of the propositions laid down by the learned Judges in that case require further examination.”
8. The Bench thus declined to accept the meaning given to ‘review’ by Courtney-Terrell, C.J in the earlier case. Fazl Ali, J. further observed:
“Even in the case of a review the words used in the article have no application when an application for review has been rejected because that case there has not been a review of judgment.”
9. The matter was considered again by a Full Bench of the Patna High Court in ??? Prasad v. Parmeshwar Prasad AIR 1951 Pat 1 (C). After examining the cases which had been relied upon by Court ney-Terrell, C.J the Full Bench took the view that the rule laid down in Firm Dedh Raj Bhagwan Das (A), was not good law. In Suk nandan Singh v. Mst. Ramdeyi Kunwar, AIR 1932 All 601 (D), a Bench of this Court had consider the same question.
10. A final decree in a mortgage suit had been obtained on the 5th March, 1926 and the application for execution was made on the 21st March 1929 more than three years after the decree has been passed. The application was dismissed barred by time. It was urged by the decree ??? in appeal that after the final decree bad bee passed ex parte, an application was made by the judgment-debtor for setting aside the ex par decree and this application was not rejected 30th March, 1925 and this order in its turn was affirmed on appeal on the 14th May, 1926. It contended that the period of three years should be counted from the date of the dismissal of the application for setting aside the final decree appeal.
11. This Court took the view that there was no appeal against the final decree and the word where there has been an appeal in Cl. (2) Article 182 did not include an appeal from an order refusing to set aside an ex parte decree. Relating to clause (3) the learned Judges observed
“But although there is an analogy between an application for setting aside an ex parte decree and an application for review, we are ??? opinion that in Article 182, Limitation Act, the words ‘review of judgment’ must be ??? to a review of judgment. As the word are used in other portions of the same schedule………………….
There is no reason to suppose that the word ‘review of judgment’ have a different significant in the Limitation Act than that which they have in the Civil Procedure Code.”
12. The same view was taken in Bahadi Singh v. Sheo Shankar, AIR 1950 All 327 (E).
13. The contention, urged by learned count for the appellant cannot therefore prevail. The Courts below were right in holding that the a plication for execution were barred by time. The appeals fail and are dismissed ??? costs.
K.S.B
14. Appeals dismissed.