1988 PLP 1488 (MLD)

No one has appeared on behalf of the respondents. They are proceeded against ex parte.

2. This E.S.A. arises from an appellate order dated 24-7-1969 passed by Mr. Rasul Bakhsh Bahadur Khan Laghari, the then Additional District Judge, Sialkot, in an execution matter.

3. The initial decree was passed on 17-3-1955 by a Civil Judge. Second appeal brought against it was dismissed on 11-7-1962 by the High Court. Then the present appellant preferred an application for special leave to appeal to the High Court which, too, was dismissed on 5-7-1965. The respondents-decree-holder applied for execution before the Court of First instance on 27-2-1968. An objection was raised that the limitation for seeking execution started on 11-7-1962 when the second appeal was dismisses? and that the execution application brought on 27-2-1968 was barred by time as provided by Article 182 of the Limitation Act. Both the Courts below repelled the objection relying upon Bali) Harshet Shetye v. Shrikrishna Govind Kulkarni (A I R 1930 Bombay 224) and K.M.S. Kumarappa Chettiar v. The Official Receiver, West Tanjor ( A I R 1950 Mad. 216), for taking a view that the order of 5-7-1965 rejecting application for special leave to appeal formed part of the judgment passed in the second appeal, and therefore, the limitation for execution will be counted from 5-7-1965 rather than 11-7-1962.

3. In the present appeal, the conclusion drawn by the Courts below was challenged to be erroneous. Counsel contended that both the authorities discussed a little different proposition namely, if an order passed in pursuance of Letters Patent or a petition for special leave to appeal was actually in itself a judgment creating a right of further appeal. This proposition in this case does not help much. A comparatively clear authority against the respondents was found in Raja Kotagiri Venkata Subbarnma Rao v. Vellanki Venkatrama Rao (Mad. Law Journal Reports Volume 10, page 221), which laid down: "An application for leave to appeal to the Privy Council is not equivalent to an appeal and does not give a new starting point of limitation for an application for execution from the date of its disposal." There was no reason why not to apply this dictum to the present case. It is exactly on all fours, in that, it related to a like application for leave to appeal. Its date of disposal was held not to give a new starting point of limitation for the purposes of execution of the basic decree. In this case, the final decree having been passed by the High Court on 11-7-1962 could have been executed latest before 11-7-1965. The execution application was, however, filed on 27-2-1968 which evidently was barred by about three years. Article 182 (now omitted) of the Limitation Act was a bar to its execution so late. The Courts below took an erroneous view of the law on the point by allowing the limitation to start from 5-7-1965. Their orders cannot be maintained.

4. As a result, the appeal is accepted ex parte and the impugned order of the Courts below is set aside. Consequently, the respondents application for I execution is dismissed being barred by time. M.Y.H./3246/L Appeal allowed,