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Uma Charan Chakrabarti And Ors. v. Nibaran Chandra Chakrabarti
Structured Summary of the Opinion
Factual and Procedural Background
This is an appeal against a final decree in a mortgage suit for sale. The preliminary decree was made by the Primary Court on 16 July 1914 under Section 96 of the Code of Civil Procedure. Under that preliminary decree the mortgagors had the right to redeem within six months (i.e., until 16 January 1915). An appeal from the preliminary decree was preferred to the High Court. That appeal was heard and dismissed on the merits by the High Court on 30 May 1917, affirming the Primary Court's decision. On 24 March 1920 the decree-holders presented an application under Order XXXIV, Rule 5, Sub-rule (ii) for a final decree. The defendants contended that this application was barred by limitation under Article 181 of the Schedule to the Indian Limitation Act because it was presented more than three years after the expiry of the six-month redemption period (i.e., after 16 January 1918). The Subordinate Judge overruled the limitation objection relying on earlier decisions. The present appeal challenges the final decree on the ground that the application for a final decree was time-barred.
Legal Issues Presented
- Whether the application to make absolute a preliminary decree in a mortgage suit is governed by Article 181 of the Schedule to the Indian Limitation Act and, if so, from which date the three-year period runs (the date fixed by the Primary Court for redemption versus the date of the Appellate Court's decree).
- Whether an application made within three years of the date of the affirmance of a preliminary decree on appeal is within the period prescribed by Article 181.
- Whether precedents that treat the appellate decree as the operative decree for limitation purposes should be upheld or overruled in light of decisions such as Hukum Chand Boid v. Pirthichand Lal.
Arguments of the Parties
Appellants' Arguments
- The application to make the preliminary decree final was time-barred under Article 181 because time should run from the date when the mortgagors' right to redeem expired (six months from 16 July 1914, i.e., 16 January 1915); consequently the three-year limitation period expired on or before 16 January 1918 and the application filed on 24 March 1920 was out of time.
- The court was invited to hold that prior decisions (specifically Gajadhar Singh v. Kishen Jiwan Lal, Nizam-ud-din Shah v. Bohra Bhim Sen, and Jayanti Venkayya v. Damisetti Sathiraju) were wrongly decided and contrary to the principle in Hukum Chand Boid v. Pirthichand Lal (Judicial Committee decision).
Respondents' / Decree-holders' Arguments
- The application was not barred because when a preliminary decree is affirmed on appeal the operative decree is the appellate decree; therefore time for presenting an application under Article 181 runs from the date of the appellate decree (30 May 1917), and the application of 24 March 1920 was within three years of that date.
- The Subordinate Judge's reliance on authorities such as Gajadhar Singh v. Kishen Jiwan Lal and related cases supports the proposition that an application made within three years of the date of the affirmance is within Article 181.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Gajadhar Singh v. Kishen Jiwan Lal (42 Ind. Cas. 93) | Authority that when a preliminary decree in a mortgage suit has been affirmed on appeal, an application made within three years of the date of the affirmance to make the decree final is within Article 181. | The Court held that the view taken in this case is well-founded and should be adopted. |
| Nizam-ud-din Shah v. Bohra Bhim Sen (43 Ind. Cas. 870) | Same proposition as Gajadhar Singh: time for application under Article 181 runs from date of affirmance by appellate court. | The Court adopted and followed this authority in affirming the decision below. |
| Jayanti Venkayya v. Damisetti Sathiraju (64 Ind. Cas. 470) | Same proposition: supports that an application within three years of affirmation is within Article 181. | Counted among the authorities the Court adopted in reaching its conclusion. |
| Hukum Chand Boid v. Pirthichand Lal (50 Ind. Cas. 444) | Judicial Committee decision relied upon by appellants; addresses accrual of right to claim compensation after cancellation of sale and the effect of appeal on the accrual. | The Court held this decision distinguishable and rejected the contention that it overrules the authorities cited in favor of time running from the appellate decree. |
| Ram Charan v. Lukhi Kant (7 B.L.R. 704) | Exposition of the effect of disposal of an appeal upon the decree of the Primary Court: an affirmed decree is merged in the decree of the superior court and the lower decree ceases to be operative. | The Court quoted this exposition as explaining why time runs from the appellate decree: the appellate decree becomes the only operative decree. |
| Arunachella v. Veludayan (5 M.H.C.R. 215) | Expressed view (by Scotland, C.J.) regarding effect of appeal on the lower court's decree; supports merger concept. | Referred to in support of the merger principle cited by the Court. |
| Muhammad Sulaiman v. Muhammad Yar Khan (11 A. 267) | Adopted the merger doctrine and explained the effect of appellate disposal on subordinate decrees. | Used as authority that an affirmed lower court decree is merged into the appellate decree. |
| Kristo Kinkur Roy v. Rajah Burrodacaunt Roy (14 M.I.A. 465) | Judicial Committee decision supporting the merger principle and effect of appeal. | Referred to as part of the chain of authority establishing that the appellate decree replaces the lower decree. |
| Luchmun Persad Singh Kishun Persad Singh (8 C. 218) | Full Bench decision illustrating application of merger principle, following Judicial Committee authority. | Cited as an illustration where the doctrine was applied by a Full Bench of the Court. |
| Pitts v. La Fontaine (1881) 6 App. Cas. 482 | Judicial Committee authority referenced in support of the merger doctrine. | Included among authorities illustrating the general principle relied on by the Court. |
| Muhammad Sulaiman Khan v. Fatima (11 A. 314) | Full Bench decision endorsing the merger principle. | Referred to as additional authority for the doctrine that the appellate decree is the operative decree. |
| Rameswar v. Bhaba Sundari Debi (5 Ind. Cas. 304) | One of several cases reviewing earlier decisions on the effect of appellate disposal on decrees. | Listed among cases that review the subject and support the principle relied upon. |
| Aghora Kumar Ganguli v. Mahomed Musa (5 Ind. Cas. 723) | Authority reviewing earlier decisions concerning appellate effect on decrees. | Included among the illustrative authorities cited by the Court. |
| Brija Lal Singh v. Mahadeo Prasad (12 Ind. Cas. 669) | Case cited in the line of authorities concerning the merger doctrine. | Referred to as part of the body of precedent supporting the Court's view. |
| Gajraj Mati v. Shami Nath (36 Ind. Cas. 307) | Illustrative authority cited in review of the doctrine. | Listed among the cases that uphold the merger principle. |
| Kailash Chandra Basu v. Girija Sundari Debi (14 Ind. Cas. 299) | Cited in two contexts: among authorities illustrating merger principle and among cases distinguishable where dismissal for default is treated differently. | Referred to both as supportive of the general doctrine and as part of decisions distinguished on facts (dismissal for default). |
| Chandra Kanta v. Lakshman Chandra (36 Ind. Cas. 460) | Another authority reviewed in the line of cases on appellate effect. | Included by the Court among the precedents supporting the merger principle. |
| Brij Narain v. Tejbal Bikram (6 Ind. Cas. 669) | Judicial Committee decision reviewed as supporting the doctrine that the appellate decree displaces the lower decree. | Referred to as part of the body of Judicial Committee authority backing the Court's rule. |
| Batuk Nath v. Munni Dei (23 Ind. Cas. 644) | Judicial Committee decision concerning dismissal of appeal for default and its non-effect as an affirmance of the decree. | The Court regarded this and similar cases as distinguishable because they involve dismissal for default, not an affirmance on the merits. |
| Abdul Majid v. Jawahir Lal (23 Ind. Cas. 649) | Judicial Committee decision distinguished on the ground that dismissal for default is not an affirmance of the decree. | Used to distinguish factually different authorities that do not affect the present case's reasoning. |
| Hemendra Mohan Khashnabis v. Noresh Chandra Battacharjee (62 Ind. Cas. 418) | Decision which recognized suspension of right by appeal in certain circumstances. | Referred to as part of the jurisprudence on accrual of rights and suspension by appeal; the Court contrasted it with Hukum Chand and related authorities. |
| Ranee Sumo Moyee v. Shooshee Mokhee Burmonta (12 M.I.A. 244) | Earlier authority on accrual and suspension of rights by appeal. | Listed among cases that support the view that appeal can suspend the running of time in particular circumstances. |
| Prannath Roy Chowdhury v. Rookea Begum (7 M.I.A. 323) | Authority concerning accrual of rights and the effect of appeals. | Referred to as part of the group of cases on suspension of rights by appeal. |
| Nrityamoni Dassi v. Lakhan Chunder Sen (33 Ind. Cas. 452) | Privy Council decision related to accrual of rights and effect of appeal. | Cited among authorities that demonstrate when the right accrues and whether appeal suspends it. |
| Patloji v. Ganu (15 B. 370) | Case dealing with dismissal for default and its legal consequences. | Cited as among the decisions recognizing that dismissal for default is not an affirmance. |
| Bhola Nath v. Kanti Chundra (25 C. 311) | Case involving dismissal for default and related principles. | Included among distinguishable authorities concerning appeal dismissal for default. |
| Syam Mandal v. Satt Nath (38 Ind. Cas. 493) | Another decision dealing with dismissal for default or similar procedural issues. | Referenced as not militating against the merger doctrine relied upon in the present case. |
| Sashikanta Acharyya v. Sarat Chandra (70 Ind. Cas. 6) | Authority cited for the proposition that time runs from the date of the ultimate decree which ends the litigation; also notes divergence of opinion on related points. | The Court relied on the exposition in this case to support the conclusion that time runs from the appellate decree; the case also highlighted judicial divergence on related issues. |
| Basanta Kumar v. Radha Rani Dasi (70 Ind. Cas. 735) | Authority for the proposition that time allowed by a decree of the Court of first instance is not extended by the dismissal of an appeal against that decree (a contrary view to the one adopted here in principle). | The Court noted this case but observed it does not touch the present controversy; it recognized divergence of judicial opinion and stated the balance favors running of time from the appellate decree. |
Court's Reasoning and Analysis
The Court proceeded on the assumption that Article 181 governs applications of this kind and that the three-year period begins when the right to apply accrues. The appellants' principal contention was that the right to apply accrued on the expiry of the six-month redemption period fixed by the Primary Court (16 January 1915), so the three-year period expired on 16 January 1918 and the application filed on 24 March 1920 was out of time.
The Court rejected that contention after examining the legal effect of the appeal dismissal on 30 May 1917. It relied on the legal principle, explained in authorities such as Ram Charan v. Lukhi Kant and other Full Bench and Judicial Committee decisions, that where a lower court decree is affirmed on appeal it is merged in and replaced by the decree of the superior court; the operative decree after final appellate disposal is the appellate decree. Because only the appellate decree remains operative for all intents and purposes, the time for presenting an application under Article 181 runs from the date of that ultimate decree.
The Court distinguished decisions that treat dismissal of an appeal for default as not amounting to an affirmance (e.g., Batuk Nath v. Munni Dei, Abdul Majid v. Jawahir Lal and others). It also considered the Judicial Committee decision in Hukum Chand Boid v. Pirthichand Lal and explained why that decision was distinguishable (there the right to claim compensation accrued on the date of cancellation and could not be suspended by an appeal in the same way). The Court noted divergent judicial opinion on some related questions (citing Sashikanta Acharyya and Basanta Kumar) but concluded that the balance of authority supports the view that where a lower court's decree fixing a time for performance is affirmed on appeal, the time runs from the date of the appellate decree even if the appellate decree does not expressly recalculate the period.
Applying this principle to the facts, the Court held that the operative preliminary decree for limitation purposes was the High Court's decree of 30 May 1917; therefore the three-year period under Article 181 ran from 30 May 1917. The application of 24 March 1920 was within three years of that date and hence not barred by limitation.
Holding and Implications
Holding: The decree of the Court below is affirmed and this appeal is dismissed with costs. The order for stay of sale is discharged.
Implications:
- Direct effect on the parties: The respondent's judgment below is sustained; the final decree in the mortgage suit stands and the stay of sale granted earlier is discharged. The application to make the preliminary decree final was not time-barred because the limitation period ran from the date of the appellate decree (30 May 1917), and the application filed on 24 March 1920 fell within three years of that date.
- Broader doctrinal implication noted by the Court: The opinion endorses the line of authorities that treat an affirmed lower-court decree as merged in and replaced by the appellate decree for the purpose of accrual of rights and limitation; the Court adopted the view taken in the cited cases (e.g., Gajadhar Singh, Nizam-ud-din Shah, Jayanti Venkayya).
- On precedent: The Court rejected the argument that the Judicial Committee decision in Hukum Chand Boid v. Pirthichand Lal required a contrary result and treated that decision as distinguishable on its facts. The opinion therefore reinforces existing authorities rather than creating a substantially new rule of law.
This summary is strictly confined to the information contained in the provided opinion and does not add or infer facts or holdings beyond that text.
1. This is an appeal against the final decree in a mortgage suit for sale. The decree has been assaled on the ground that it was made on the basis of an applicat on under Order XXXIV, Rule 5, Sub-rule (ii), of the Code of Civil Procedure which was presented after the lapse of the prescribed time. To test the validity of this argument, it is necessary to refer to the salient facts in this case. The prelminary decree was made on the 16th July 1914 under Section 96 of the Code of Civil Procedure, an appeal lay against this decree. Indeed, under Section 97 if an appeal was riot preferred, the defendants would not be competent to challenge its correctness in an appeal against the final decree. An appeal was consequently lodged in this Court. The appeal was heard on the merits and the Court came to the conclusion that the decision of the Trial Court could not be successfully assailed. The result was that the decision of the Trial Court was affirmed and the appeal was dismissed with costs on the 30th May 1917. On the 24th March 1920, the present application was made under Order XXXIV, Rule 5, Sub-rule (ii), in order that a final decree might be passed. The defendants urged that the application was barred by limitation under Article 181 of the Schedule of the Indian Limitation Act, inasmuch as it had been presented more than three years after the 16th July 1914, when the preliminary decree had been made by the Primary Court. The Subordinate Judge overruled this contention on the author ty of the decision in Gajadhar Singh v. Kishen Jiwan Lal 42 Ind. Cas. 93 : 39 A. 641 : 15 A.L.J. 734. It has not been disputed before us that the contention of the appellants is opposed to the decisions in Gajadhar Singh v. Kishen Jiwan. Lal 42 Ind. Cas. 93 : 39 A. 641 : 15 A.L.J. 734, Nizam-ud-din Shah v. Bohra Bhim Sen 43 Ind. Cas. 870 : 49 A. 203 : 16 A.L.J. 85 and Jayanti Venkayya v. Damisetti Sathiraju 64 Ind. Cas. 470 : 44 M. 714 : 41 M.L.J. 71 : 14 L.W. 180. These cases are authorities for the proposition that, when a preliminary decree in mortgage suit has been affirmed oh appeal, an application made within three years of the date of the affirmance with a view to make a final decree is within the period prescribed under Article 181 of the Schedule of the Indian Limitation Act. We have been asked to hold, however, that these cases were erroneously decided and that they are contrary to the principle recognised by the Judicial Committee in Hukum Chand Boid v. Pirthichand Lal 50 Ind. Cas. 444 : 46 C. 670 : 30 C.L.J. 71 : 17 A.L.J. 514 : 36 M.L.J. 557 : C.W.N. 721 : 21 Bom. L.R. 632 : (1919) M.W.N. 258 : 36 M.L.T. 131 : 10 L.W. 416 : 46 I.A. 52 (P.C.). In our opinion, this contention is not well founded.
2. We shall assume, for the purposes of the present case, that an application to make final a decree in a mortgage suit is governed by Article 181 which provides that applications for which no period of limitation is provided elsewhere in the Schedule or by Section 48 of the Code of Civil Procedure, 1908, must be presented within three years from the date when the right to apply accrues. On behalf of the appellants, it has been contended that as by the preliminary decree the mortgagors were permitted to redeem within six months from the date of the decree, that is, on or before the 16th January 1915, the decree-holders were bound to apply to make the decree final within three years from the 16th January 1915, that is, on or before the 16th January 1918. It may be conceded that this contention is, prima facie, well founded. But that does not justify the conclusion that the appellants are entitled to succeed in their content on. We cannot overlook the events which have happened between the 16th January 1915 and 16th January 1918. The appeal preferred by the defendants in this Court had been dismissed on the 30th May 1917, and it is incumbent on the Court to consider the legal effect of the decision of this Court on the rights of the parties.
3. We may usefully recall here the lucid exposition given by Mr. Justice Dwarkanath Mitter in Ram Charan v. Lukhi Kant 7 B.L.R. 704 at p. 714 : 16 W.R. 1 (F.B.) of the true effect of the disposal of an appeal upon the decree of the Primary Court. If the decree of the lower Court is reversed by the Appellate Court, it is absolutely dead and gone; if on the other hand, it is affirmed by the Appellate Court it is equally dead and gone, though in a different way, namely, by being merged in the decree of the superior Court which takes its place for all intents and purposes; both the decrees cannot exist simultaneously. This is in accord with the view expounded by Scotland, C.J., in Arunachella v. Veludayan 5 M.H.C.R. 215, and was subsequently adopted by the majority of the Full Bench in Muhammad Sulaiman v. Muhammad Yar Khan 11 A. 267 : A.W.N. (1889) 55 : 13 Ind. Jur. 427 : 6 Ind. Dec. (N.S.) 598 (F.B.), where the observations of the Judicial Committee in Kristo Kinkur Roy v. Rajah Burrodacaunt Roy 14 M.I.A. 465 : 17 W.R. 292 : 10 B.L.R. 101 : 2 Suth. P.C.J. 564 : 3 Sar. P.C.J. 62 were explained.
4. This principle has been repeatedly approved and illustrations of its application will be found in Luchmun Persad Singh Kishun Persad Singh 8 C. 218 : 4 Shome L.R. 261 : 10 C.L.R. 425 : 4 Ind. Dec. (N.S.) 140 (F.B.), which was decided by a Full Bench of this Court and followed the decision of the Judicial Committee in Pitts v. La Fontaine (1881) 6 App. Cas. 482 : 50 L.J.P.C. 8 : 43 L.T. 519 in Muhammad Sulaiman v. Muhammad Yar Khan 11 A. 267 : A.W.N. (1889) 55 : 13 Ind. Jur. 427 : 6 Ind. Dec. (N.S.) 598 (F.B.) and Muhammad Sulaiman Khan V. Fatima 11 A. 314 : A.W.K. (1889) 107 : 6 Ind. Dec. (N.S.) 628 (F.B.), which were decided by two Full Benches of the Allahabad High Court; and in Rameswar v. Bhaba Sundari Debi 5 Ind. Cas. 304 : 11 C.L.J. 81, Aghora Kumar Ganguli v. Mahomed Musa 5 Ind. Cas. 723 : 11 C.L.J. 155, Brija Lal Singh v. Mahadeo Prasad 12 Ind. Cas. 669 : 15 C.L.J. 432 : 17 C.W.N. 133, Gajraj Mati v. Shami Nath 36 Ind. Cas. 307 : 39 A. 13 : 14 A.L.J. 853, Kailash Chandra Basu v. Girija Sundari Debi 14 Ind. Cas. 299 : 39 C. 925 : 16 C.W.N. 658 and Chandra Kanta v. Lakshman Chandra 36 Ind. Cas. 460 : 24 C.L.J. 517 : 21 C.W.N. 430; which review many of the earlier decisions on the subject and show that the doctrine is supported by the judgment of the Judicial Committee in Brij Narain v. Tejbal Bikram 6 Ind. Cas. 669 : 37 I.A. 70 : 11 C.L.J. 560 : 32 A. 295 : 14 C.W.N. 667 : 7 A.L.J. 507 : 12 Bom. L.R. 444 : 8 M.L.T. 57 : 20 M.L.J. 587 : (1910) M.W.N. 392 (P.C.).
5. The decisions of the Judicial Committee in Batuk Nath v. Munni Dei 23 Ind. Cas. 644 : 41 I.A. 104 : 19 C.L.J. 574 : 36 A. 284 : 18 C.W.N. 740 : 12 A.L.J. 596 : 16 Bom. L.R. 360 : 27 M.L.J. 1 : 16 M.L.T. 1 : 1 L.W. 729 : (1914) M.W.N. 437 (P.C.) and Abdul Majid v. Jawahir Lal 23 Ind. Cas. 649 : 36 A. 350 : 12 A.L.J. 624 : 16 Bom. L.R. 395 : 18 C.W.N. 963 : 19 C.L.J. 626 : 27 M.L.J. 17 : (1914) M.W.N. 485 : 16 M.L.T. 44 : 1 L.W. 483 (P.C.) are clearly distinguishable, as based on a recognition of the principle that dismissal of an appeal for default is not an affirmance of the decree; to the same class belong the decisions in Patloji v. Ganu 15 B. 370 : 8 Ind. Dec. (N.S.) 252, Bhola Nath v. Kanti Chundra 25 C. 311 : 1 C.W.N. 671 : 13 Ind. Dec. (N.S.) 208, Kailash Chandra Basu v. Girija Sundarl Debi 14 Ind. Cas. 299 : 39 C. 925 : 16 C.W.N. 658 and Syam Mandal v. Satt Nath 38 Ind. Cas. 493 : 44 C. 954 : 24 C.L.J. 523 : 21 C.W.N. 776. These decisions do not militate against or weaken the effect of the two decisions of the Judicial Committee in Kristo Kinkur Roy v. Rajah Burrodacaunt Roy 14 M.I.A. 465 : 17 W.R. 292 : 10 B.L.R. 101 : 2 Suth. P.C.J. 564 : 3 Sar. P.C.J. 62 and Brij Narain v. Tejbal Bikram 6 Ind. Cas. 669 : 37 I.A. 70 : 11 C.L.J. 560 : 32 A. 295 : 14 C.W.N. 667 : 7 A.L.J. 507 : 12 Bom. L.R. 444 : 8 M.L.T. 57 : 20 M.L.J. 587 : (1910) M.W.N. 392 (P.C.). The decision of the Judicial Committee in Hukum Chand Boid v. Pirthichand Lal 50 Ind. Cas. 444 : 46 C. 670 : 30 C.L.J. 71 : 17 A.L.J. 514 : 36 M.L.J. 557 : C.W.N. 721 : 21 Bom. L.R. 632 : (1919) M.W.N. 258 : 36 M.L.T. 131 : 10 L.W. 416 : 46 I.A. 52 (P.C.) is also clearly distinguishable. In this case, a claim was put forward for compensation on the ground of failure of consideration by cancellation of the sale. It was ruled that the right to claim compensation had accrued on the date of the cancellation of the sale, by the Primary Court and that the person entitled to the compensation could not claim extension of time on the ground that an appeal had been preferred from the proceedings for reversal of the sale for there was no suspension of the right as in Hemendra Mohan Khashnabis v. Noresh Chandra Battacharjee 62 Ind. Cas. 418 : 33 C.L.J. 260 : 25 C.W.N. 376, which followed Ranee Sumo Moyee v. Shooshee Mokhee Burmonta 12 M.I.A. 244 : 11 W.R.P.C. 5 : 2 B.L.R.P.C. 10 : 2 Suth. P.C.J. 173 : 2 Sar. P.C.J. 424 : 20 E.R. 331 : 1 Ind. Dec. (N.S.) 489, Prannath Roy Chowdhury v. Rookea Begum 7 M.I.A. 323 : 4 W.R.P.C. 37 : 1 Suth P.C.J. 367 : 1 Sar. P.C.J. 692 : 19 E.R. 331 and Nrityamoni Dassi v. Lakhan Chunder Sen 33 Ind. Cas. 452 : 43 C. 660 : 20 C.W.N. 522 : 30 M.L.J. 529 : (1916) 1 M.W.N 332 : 3 L.W. 471 : 18 Bom. L.R. 418 : 34 C.L.J. 1 : 20 M.L.T. 10 (P.C.).
6. In the case before us, the facts are entirely different. The plaintiffs seek to make final a preliminary decree in a mortgage suit. The question is, which is the preliminary decree that can be made absolute at the date of the application? In the first place, it is manifest that the only decres which is operative and can be affirmed or the date of the application is the decree of the High Court made on the 30th May 1917, and, consequently, time ran not from the 16th July 1914, but from the 30th May 1917. The common principle which governs all the cases is, that the time runs from the date of the ultimate decree which term hates the litigation and becomes, as soon as it is passed, the only operative decree between the parties, as was pointed out in Sashikanta Acharyya V. Sarat Chandra 70 Ind. Cas. 6 : 34. C.L.J. 415 at P. 427. If a contrary view were adopted, it would be impossible to reconcile the cases on the subject. Our attention has finally been drawn to the case of Basanta Kumar v. Radha Rani Dasi 70 Ind. Cas. 735 : 26 C.W.N. 440 : 36 C.L.J. 159 : (1922) A.I.R. (C.) 329, which appears to be an authority for the proposition that, when time is allowed by the decree of the Court of first instance for the performance of an act, the time is not extended by the dismissal of the appeal preferred against that decree. This view does not touch the question in control versy before us. But we may point out that there is much divergence of judicial opinion on the subject, as pointed out in the case of Sashikanta Acharyya v. Sarat Chandra 70 Ind. Cas. 6 : 34. C.L.J. 415 at P. 427. The balance of judicial opinion is in favour of the view that, when time is fixed by the lower Court for payment of money and the decree of the lower Court is confirmed on appeal, the time for payment runs from the date of the decree of the Appellate Court though the latter decree does not expressly provide that the time for payment should be calculated from the date of the appellate decree. We need not, for the purpose of the present case, discuss whether the decisions which take the contrary view may be defended on principle.
7. We hold accordingly, that the view taken in Gajadhar Singh v. Kishen Jiwan Lal 42 Ind. Cas. 93 : 39 A. 641 : 15 A.L.J. 734, Nizam-ud-din Shah v. Bohra Bhim Sen 43 Ind. Cas. 870 : 49 A. 203 : 16 A.L.J. 85, and Jayanti Venkayya v. Damisetti Sathiraju 64 Ind. Cas. 470 : 44 M. 714 : 41 M.L.J. 71 : 14 L.W. 180 is well-founded and should be adopted.
8. The result is, that the decree made by the Court below is affirmed and this appeal dismissed with costs.
9. The order for stay of sale will stand discharged.
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