P L D 1961 Dacca 312 (PLP)

AMIN AHMED, C. J.‑This appeal is on behalf of the decree -holder, It is from a decision of the Subordinate Judge, 1st Court, Mymensingh, in Miscellaneous Appeal No. 206 of 1957, reversing the decision of the Munsif, 2nd Court, Sadar, Mymensingh, in Miscellaneous Case No. 45 of 1947.

2. The facts material for the disposal of this appeal are as follows ; The decree‑holder appellant, i.e., the Mymensingh Town Co‑operative Bank Limited (to be hereinafter referred to as the Bank), obtained an award against the respondent who stood surety for a loan taken from the Bank, and as the gentleman who bor rowed the money defaulted and did not repay the debt, the claim in dispute was referred by the Registrar to an Arbitrator under section 87 of the Bengal Co‑operative Societies Act, 1940 (to be hereinafter referred to as the Act), and the Arbitrator made his award in favour of the Bank on the 21st of December 1951. Against the award the respondent preferred an appeal under section 134 of the Act before the Registrar ; but that appeal was dismissed on the 24th of April 1952. Thereafter, under subsec tion (1) of section 135 of the Act the respondent applied to the Provincial Government for relief. That application was also dismissed by the Provincial Government on the 3rd of December 1952. The respondent thereafter filed a suit for declaration that the award in favour of the Bank was null and void ; but that suit was also dismissed on the 24th of August 1955. The Bank then started Money Execution Case No. 38‑A of 1955 on the 2nd of December 1955 ; but the case was dismissed on the 12th of Decem ber 1955. A second execution case, being Money Execution Case No. 11 of 1956, was started by the Bank on the 25th of February 1956 ; but that case was allowed by the Bank to be dismissed for default as the respondent told the Bank that he would pay the money amicably. Thereafter, as the amount of debt was not paid, the Bank started Money Execution Case No. 48 of 1956, on the 9th of November 1956, and notice under Order XXI, rule 22 of the Code of Civil Procedure (hereinafter referred to as the Code) was served on the 17th of December 1956.

3. On the 22nd of February 1957, the respondent filed an application under section 47 of the Code objecting to the last money execution case and the present Miscellaneous Case No. 45 of 1957 has arisen out of the same. The petitioner for execution was resisted on several grounds, inter alia, it was stated that the execution case was not maintainable inasmuch as the number, year, etc., of the suit were not mentioned in execution petition ; that inasmuch as the Bank did not put the decree into within three years from the date of disposal of the appeal on the 24th of April 1952, the execution petition was barred by time ; that notice under Order XXI, rule 22 of the Code was not served.

4. The decree‑holder Bank, however, contended that they were entitled to execute the decree as they had filed the execution petition within three years from the date of the review case by the Provincial Government, the original Money Execution Case No. 38‑A of 1955 having been filed within the prescribed period of limitation. The decree‑holder Bank further contended that the objection petition under section 47 of the code not having been filed after service of processes under Order XXI, rule 22 of the Code, the judgment‑debtor respondent was estopped from chal lenging the decree as barred by limitation. So, the decree‑holder Bank invited the Court to hold that the judgment‑debtor's objection petition should be dismissed.

5. The trial Court found in favour of the Bank, and held that the order passed by the Provincial Government was an order passed in revision and not by way of review, and, as such, the decree‑holder's case was governed by Article 181 of the Limitation Act, and they were entitled to file the execution case within three years from the date of disposal of the revision case ; that the respondent was not entitled to take the plea of limitation in the execution case as he did not do so when the notice under Order XXI, rule 22 of the Code was served. The latter finding was based on the case of Lalit Mohan Roy and others v. Sarat Chandra Saha (37 C W N 752). The trial Court, therefore, dismissed the Miscellaneous case with costs.

6. Against that decision an appeal was taken to the learned Subordinate Judge, 1st Court, Mymensingh. The learned Subordi nate Judge upheld the findings of the trial Court except that on the point of limitation taken by the decree‑holder appellant, he took a different view, and relying on the cases of Sheikh Mohammad Naqir and others v. Sheikh Alauddin Ahmad and others (A I R 1941 Pat. 213) (in the judgment the page has been wrongly mentioned as 230) and Kurupan Zamindar v. Sadasiva (1 L R 10 Mad. 66) (in the judgment wrongly referred to as 10 A I R 66, he held that the appellant's application for execution under section 47 of the Code was barred by the law of limitation as clause (3) of Article 182 of the Limitation Act does not apply in a case where application for review is rejected. As to the objection of the decree‑holder as to the judgment‑debtor being estopped from raising the point of limitation after service of notice under Order XXI, rule 22 of the Code relying on the case of Baidnath Sil and others v. Bejoy Chandra Kundu and others (39 C W N 583), he over‑ruled it and, therefore, allowed the miscellaneous appeal, and directed that the execution case should be struck off. Hence this second miscellaneous appeal.

7. Mr. Aziz who appears for the appellant argues that the learned Subordinate Judge erred in law in holding that the appli cation for execution was time‑barred inasmuch as it was not filed within three years from the date of dismissal of the appeal, and that clause (2) of Article 182 did not apply. The learned Advocate relies on the provision of section 135 of the Act, which runs as follows :‑ "135 Review and revision.‑(1) The Provincial Government may call for the record of inspection held or made under this Act and may examine the record of any enquiry or proceedings of the Registrar or any person subordinate to him or acting on his authority, and may pass thereon such orders as it thinks fit. (2) The Registrar may at any time‑‑ (a) revise any order passed by himself, or (b) call for and examine the record of any enquiry or inspec tion held or made under this Act or the proceedings of any person subordinate to him or acting on his authority, and if it appears to him that any decision, order or award or any pro ceedings so called for should for any reason be modified, annulled or reversed, may pass such orders thereon as he thinks fit: Provided that, before any order is made under clause (a) or clause (b), the Registrar shall afford to any person, likely to be affected adversely by such order, an opportunity of being heard." He claims that subsection (1) of section 135 of the Act prescribes a revision, and not a review, although in the marginal notes the words are both review and revision. The learned Advocate states that inasmuch as under subsection (2) of section 135 of the Act the Registrar has been given the power to revise the order passed by himself or to call for and examine the record of any order passed in any proceeding by any of his subordinates, it should be held that the order of the Registrar under clause (2) (a) is one of review, and that of the Government under clause (a) is one of revision, and, therefore, clause (2) of Article 182 of the Limitation Act will apply. Article 182 of the Limitation Act runs as follows : "For the execution of a decree or order of any Civil Court not provided for by Article 183 or by section 48 of the Code of Civil Procedure, 1908(V of 1908)." "Three years or where a certified copy of the decree or order has been registered, 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 with drawal of the appeal, or (3) (where there has been a review of judg ment 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 appli cation 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 men tioned decree or in the case of an appeal there from, the date of the final decree of the Appellate Court or of the withdrawal of the appeal, or (7) (where the appli cation is to enforce any payment which the decree or order directs to be made at a certain date) such date." The learned Advocate maintains that the appeal mentioned in clause (2) of Article 182 of the Limitation Act includes a revision. In support of his contention he has relied on the cases of Chidambara Nadar v. Rama Nadar and others (A I R 1937 Mad. 385) and Ajudhia Prasad v. U. P. Government (A I R 1947 All. 390).

8. Mr. Roy, who appears for the respondent, first of all con tends that the order of the Provincial Government cannot be relied upon at all as there is no provision in the Act that the Provincial Government will consider a case of this nature after giving notice to the parties. Secondly, he argues that it cannot be said to be a review inasmuch as according to the Code a review is made by the same authority as passes the order sought to be reviewed. In the third place, he urges that even if it is held to be a review, it does not help the appellant as it has been held in a number of cases that `review' means where review has been allowed, i.e., the order of judgment has been modified or altered after review, but where a review is rejected, limitation does not run from the date of the decision passed on the review. Mr. Roy refers to clause (3) of Article 182 of the Limitation Act and the cases referred to by the learned Subordinate Judge, and has also taken us through the definitions of the terms "review" and "revise" as given in Volume VIII of the Oxford English Dictionary (1933 Edition). According to that Dictionary, Volume VIII, page 609, '`review" means "

4. Law" "To submit (a decree act, etc.) to examination or revision", and `revise' at page 610 of the same volume means, "

2. To see or behold, to look at again", "

3. To look or read carefully over, with a view to improving or correct ing." In addition to these, Mr, Roy has cited the case of Rai Brijraj v. Nauratan Lal (A I R 1917 Pat. 157), in support of his contention.

9. In our opinion, there is substance in the contention of the learned Advocate for the appellant. It will appear from the pro visions of section 134 read with columns 2, 3 and 4 of the fourth schedule, and section 135 of the Act read with items Nos. 7 and 8 of column 1 of the fourth and fifth schedules, and it seems both the learned Advocates agree that if a party fails to get any relief from the Registrar either by way of review or by any other procedure, Government has got the general power of revision. Items 7 and 8 of the fourth and fifth schedules of the Act are as follows :‑

7. Any order, deci sion or award of the Registrar or an arbitrator under section 87 or

88. By any person ag grieved; (a) if passed by the Registrar, to the Provincial Government ; or (b) if One month from the date on which the order, decision or award was communicated to the person passed by any other aggrieved person, to the Regis trar.

8. An order passed under section 89 for the winding up of a society. By any member of the society; (a) if passed by the Regis trar, to the Provincial Two months from the date on which the order was communicated to the Society. Government, or (b) if passed by any other person, to the Registrar.

10. We may observe that we do not accept the contention of Mr. Roy that `review' as mentioned in clause (3) of Article 182 of the Limitation Act means that where a judgment or decree has been modified or amended or altered, and not rejected, because of the words in brackets "where there has been a review of judg ment." Qualifying words like these also appear in all the other clauses, except in clause (1) of Article 1827 and these, in our opinion, only refer to such points of time as appeal, review, amended decree, etc., and the words after the words in brackets in A clause (3) are "the date of the decision passed on the review". and there are no words in that clause to the effect that the date will be the date of the decision modifying the judgment ; the word, is "decision". Therefore, if a review is granted or refused, it will be a decision in either case. We may, however, state that we have not been shown anything to establish that the Government did not consider the application, whether it was for revision or for review, on merits and decided against the respondent. Mr. Roy tries to make a point that in clause (4) the qualifying words being "where the decree has been amended", in clause (3) if the Legislature intended to mean that the period of limitation would run only "from the date of the decision passed on the review", then the words "where there has been a review of judgment" would not have proceeded then. In other words, Mr. Roy wants us to construe these latter words in the beginning of clause (3) to mean that the judgment has been reviewed and altered. We fail to appreciate this either. For, if a judgment is reviewed, whether the reviewing o the judgment is in favour or against any party it will have to b taken that the judgment has been reviewed. On the other hand, because of the words in brackets in clause (3) as distinguished from the words in brackets in clause (4), and ;hose in brackets differ ent clauses other than clause (1), there cannot be any doubt that the Legislature never meant that the date of decision passed on review implied that the judgment must have been reviewed and altered in favour of the person who had made an application for review. We are afraid, we cannot agree with the view taken in the cases cited by the lower appellate Court, and we do not see any reason why we should not go by the wording of the statute rather than by the interpretation put in the case cited before the lower Appellate Court and before us. We also note that owing to the absence of any provision in the old Act as regards amendment of decree, it was held in some cases that the words "review of judg ment" in clause (3) included amendment of decree‑vide the case of Kali Prosunno Basu and others v. Lal Mohan Guha Roy (I L R 25 Cal. 258). Under the present Article there is a separate provision in clause (4) for amendment of the decree. In the case of Aditya Kumar Bhatta charjee v. Abinash Chandra Mukhopadhya and others (34 C W N 1002), it has been held that the Article includes all amendments whether under section 152 of the Code of Civil Procedure or under Order XLVII of the Code of Civil Procedure or any other provisions of law.

11. Now, if it is not a review but a revision, as also main tained by Mr. Roy, we do not know how that helps him. Mr. Roy has taken us through the provisions of section 135 of the Act, and has pointed out that subsection (2) (a), wherein it is stated that the Registrar may at any time revise any order passed by himself, should be taken to mean that the Registrar may review such order though the Legislature has used the word "revise". In the present case the appeal was heard by the Registrar, and no application was made to him either to revise or to review, and the judgment- debtor applied to the Provincial Government under subsection (1) of section 135 of the Act, and, as such, it must be taken that the judgment‑debtor applied to the Government for revision. If that is so, there seems to be no difficulty, and we agree with the view that an appeal includes revision as laid down in Chidambara Nadar's case, and in Ajudhia Prasad's case, on which the learned Advocate for the appellant has relied, and if any further authority is neces sary, we may refer to the case of Gurapada Haldar v. Tarit Bhusan Roy Choudhury and others (22 C W N 158), where it has been held under clause (2) of Article 182, limitation ran from the order in revision. So, in this case as the revision was admittedly disposed of on the 3rd of December, 1952, and the money execution case started on the 2nd of December, 1955, it will be within the prescribed period of limitation of three years, and, therefore, is not barred by limitation, and, therefore, in either case whether the proceedings before the Provincial Government are revision or review, in the view we have taken, clause (3) of Article 182 of the Limita tion Act in the case of review and clause (2) of that Article in the case of appeal and revision, will apply. Therefore, this point is decided in favour of the appellant.

12. There is another aspect of the case which seems to have been overlooked. 1f the present application for execution is not covered by Article 182 of the Limitation Act, the decree‑holder may fall back on the residuary Article 181, for, it has been laid down in. the case of Rungiah Gounden and Co. v. Nanjappa Row and others (I L R 26 Mad. 780), and followed in the case of Sahul Hameed Rowther v. P. R. S. A. Arnnachalam Pillai and another (A I R 1944 Mad. 561), that the true criterion in determining whether Article 181 or 182 of the Limita tion Act applies to a particular application for execution is to ascertain whether any one of the several points of time specified in column 3 of Article 182 is applicable to it, and if none of them is applicable then Article 181 of the Limitation Act must apply.

13. The next point urged by the learned Advocate for the appellant is that the lower appellate Court erred in law in holding that the objection petition under section 47 of the Code filed by the respondent was not barred. The learned Advocate has strenuously contended that inasmuch as after the service of notice under Order XX1, rule 22 no objection on the ground of limitation was taken, the respondent is estopped from taking the objection after the writ of attachment under Order XXI, rule 54 of the Code was issued by the executing Court. It is pointed out that a writ of attachment under Order XXI, rule 54 of the Code was issued on the 7th of January 1957, fixing the 5th of February 1957, for return, and the judgment‑debtor respondent did not file his objec tion petition until the 22nd of February 1957, and as he could have taken this objection when the notice under Order XXI, rule 22 of the Code was issued, and he did not do so, he is precluded from doing so by the rule of constructive res judicata.

14. In our opinion, there is no substance in this contention of the learned Advocate for the appellant, and in answer we may only refer to the case of Karali Prosad Roy v. Probadh Chandra Mitra and others (judgment of Harris, C. J. and Banerjee, J.), where it has been held among other things that, whether or not a judgment‑debtor has been served with a notice under Order XXI, rule 22 of the Code, he is not precluded from raising the point of limitation at the time of attachment or sale, and the plea of res judicata is no bar to the judgment‑debtor taking the point of limitation to an application for execution and. where the application is not in time the Court is bound to dismiss it. We may also point out that this will also appear from the provisions of Order XXI, rule 22 of the Code, and its amendment that this provision of law has been laid down only where the application for execution is made more than one year after the date of the decree, and the proviso to sub‑vile (1) of the said rule states where such notice will not be necessary, sub‑rule (3) of rule 22 of Order XXI of the Code also supports the view we are taking. This sub‑rule runs as follows:‑ "Omission to issue a ho (ice in a case where notice is required under sub‑rule (1), or to record reasons in a case where notice is dispensed with under sub‑rule (2), shall not affect the jurisdiction of the Court in executing the decree." So, on this point we are against the appellant.

15. These are the only two points which were urged before us, and the appellant succeeds on the first point, namely, the point of limitation.

16. In the result, the appeal is allowed with costs ; the judg ment and order of the Court of appeal below are set aside, and those of the trial Court dismissing the Miscellaneous Case No. 45 of 1957 with costs are restored. ASIR, J.‑I agree with my lord the Chief Justice. R. B. A. Appeal accepted.