L. Bengali Mal And Others Judgment-Debtors v. Baijnath Prasad And Others Decree-Holders

1. This is a second execution appeal by the judgment-debtors objectors. In the suit out of which the decree under execution has arisen the original decision is dated 3rd November, 1932. Against that decision there was an appeal which was dismissed on 19th April, 1934. On 16th July, 1934 there was an application for review of judgment, which application was rejected on 12th September, 1936 with the result that there was no re-hearing of the appeal. The present application for execution was made on 8th February, 1939 and on receipt of notice the judgment-debtors entered an objection that the application for execution was barred by limitation as having been made more than three years from the date of the appellate decree. They contended that limitation began to run from 19th April, 1934, while on behalf of the decree-holders it was contended that it began to run from 12th September, 1936. The learned Munsif, sitting as an execution Judge, allowed the judgment-debtors' objection and held that the execution application was beyond time. He relied on a case reported in A.I.R 1922 Oudh 1481 On the matter going in appeal the learned Civil Judge has apparently relied on the case in 4 All. 2742 and has held that the time began to run from the dismissal of the application for review. The case on which the learned Civil Judge has relied was, however, not at all on all fours with the present case. It was a case in which an application was made for review of the judgment. That application was allowed and on a re-hearing a fresh decree was passed. An appeal was filed against that decree and an appellate decree was passed. It was successfully contended that time began to run not from the original decree but from the appellate decree modifying what might be called the second original decree.

2. The question is what is the meaning of the words which find a place in Article 182, cl. (3), Limitation Act. That article provides a period of limitation of three years for the execution of a decree or order by a civil Court not provided for by Article 183, or by Section 48 of the CPC, 1908 and it provides that the time from which the period begins to run “where there has been a review of judgment” is the date of the decision passed on the review. Prima facie where an application for review of judgment has-been rejected, it is clear that there cannot have been a review of judgment. On the other hand, where the application has been allowed then the period of limitation begins to run from the date of the substituted decree which results on a re-hearing of the suit or appeal as the case may be. Taking the plain meaning of the words “where there has been a review,” they only cover cases where the application has been allowed and there has been an actual review or re-hearing of the case or appeal. In that case the limitation will begin to run from the date of the new decree. It would indeed begin to run from the date of the new decree even if the new decree was the same as the decree in respect of which the application for review had been made and allowed. On the point, first of all, of the interpretation of the wording of the Limitation Act, I may refer to the remarks of their Lordships of the Privy Council in A.I.R 1932 P.C 1653 at p. 167. There Lordships are referring to the wording of Article 182(2) and they say:

“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 word is, their Lordships think, the only safe guide.”

3. I might perhaps say that it is precisely because he forgot this clear pronouncement that the learned Judge of the Court below seems to have gone astray. For the view that the words “where there has been a review of judgment” in the article are to be interpreted strictly as meaning what they say there is a good deal of support. In the case referred to by the learned Munsif, A.I.R 1922 Oudh 148, Dalai, A.J.C, took the view that:

“The question whether an application for review will give a fresh starting point for limitation or not cannot be decided in the abstract but must depend on the facts of every case. If the application for review is not accepted and the Court refuses to reopen the matter, no fresh starting point will be obtained by the applicant for the purposes of limitation. That is obvious because in those circumstances there will not have been a review but only an application for review.”

4. The point was mentioned incidentally in a Bench decision of this Court in 1932 A.L.J 7314 The case had to deal mainly with cl. (2) of Article 182 but referring to Article 182, cl. (3), the learned Judges remarked:

“Moreover the clause on which the learned counsel relies does not refer to an application for review but to cases where there has been a review of judgment.”

5. They made it quite clear that the words must be construed strictly. Another very recent case to which reference has been made is A.I.R 1941 Pat. 2135 Referring to the provisions of cl, (3), Fazl Ali, J. remarked:

“Article 182, cl. (3) provides that where there has been a review of judgment the period of limitation begins to run from the date of the decision passed on the review” (that is on the re-hearing of the suit or appeal). “This provision has been construed in a number of cases where it has been held that it does not apply where the application for review has not been granted but rejected, that is to say, in such cases limitation is not enlarged under this clause.”

6. The learned Judge went on to remark that he entirely agreed with this view and he considered that there was no justification whatever for inserting the word “application” into this provision. He went on to say:

“On the other hand, the words ‘when there has been a review of judgment’ must mean a review by some one who can review the judgment, that is to say, by the Court which pronounced the judgment to be reviewed. If that is the meaning to be attached to the words, it is plain that the article will have no application where an application for review has been rejected, because in that case there has not been a review of judgment.”

7. With the greatest respect I entirely agree with that view. The learned counsel for the respondents has referred to A.I.R 1937 Pat. 3376, but the remarks in that decision with reference to cl. (3) are, if I may say so, largely obiter and were not approved of by the learned Judges who had to decide the later case above quoted, though they did not think it necessary in the circumstances to make a reference to a larger Bench. Another case which has been relied upon is a judgment of a Single Judge of the Bombay High Court in A.I.R 1936 Bom 1627 This was a case in which there was a decree. Thereafter there was an application for review which was granted and then there was an appeal against the order made on review and there was an order made by the Court in that appeal. The question was whether the decree-holder could take advantage of the later proceedings. On the view taken by this Court in 4 All. 274, there could be no doubt whatever on the question, and the reliance which is placed upon this decision is based upon certain remarks made in the body of the judgment, as for example where the learned Judge says:

“My view then is that the words in Article 182(3) ‘decision passed on the review’ mean a decision passed in review proceedings, and whatever such a decision is, it gives a fresh starting point of limitation.”

8. If by the words “the review proceedings” the learned Judge meant “in the application proceedings,” that would be a support for the contention put forward on behalf of the respondents. But if he only meant a decision passed in the “re-hearing” proceedings, then plainly it is of no use to him at all. With the greatest respect lam unable to derive any assistance from this decision for the reason that every sentence in it upon which the learned counsel has been able to found any argument is capable of two interpretations and it is only if the interpretation which he supports is accepted that the decision is of any help to him. In my judgment on the plain meaning of the words which find a place in Article 182 and on a consideration of the decisions relevant to the interpretation of those words there can be no doubt that they do not cover cases in which the application for review has been rejected.

9. In such cases limitation begins to run from the original decree. In this case it began to run from 19th April, 1934 and the application for execution made on 8th February, 1939 was clearly barred by limitation. I accordingly allow this appeal, set aside the order of the lower appellate Court and restore the order of the learned Munsif allowing the objection and dismissing the application for execution. The appellants will have their costs throughout. Leave for Letters Patent appeal is refused.

G.N/R.K

10. Appeal allowed.