P L D 1954 Lahore 388 (PLP)

KAIKAUS, J.‑The facts relating to this appeal are not complicated. The appellant Hakeem Ghulam Jilani and the respondent Hakeem Muhammad Abdullah are real brothers. They owned some joint property in Bhera with respect to which there were disputes between them and the matter was referred to an arbitrator by an agreement dated the 7th of May

135. The arbitrator gave his award on the 1st of November 1937. On the basis of this award a decree was passed in favour of the respondent on the 5th of May 7.939 by a Subordinate judge at Sargodha. The question whether the decree should be passed on the basis of the award was made the subject of an appeal to the High Court, which dismissed it on 1st of November 1930. The respondent made some infructuous applications for execution of the decree and finally made the application dated the 29th of October 1951 which has given rise to this appeal. To this application for execution, the appellant took the following three objections :‑ (1) That there was no proper decree before‑the Court as the decree referred to Exh.. A/3 which was the agreement instead of Exh. A/4 which was the award. (2) The decree had not been drawn ‑up on stamped, paper . . . . (3) The application for execution was barred by the provisions of section 48, C. P. C. The learned Senior Sub‑Judge who heard these ‑objections rejected all of them. In this appeal which has been filed by the judgment‑debtor, the first two objections are not pressed in view of the fact that the decree has since been amended and stamp duty paid. I am only concerned with the question whether the application is time‑barred in view of section 48, C. P. C. Section 48 runs: "(1) where an application to execute a decree not being a decree granting an injunction has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of 12 years from‑ (a) the date of the decree sought to be executed, or (b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of the default in making the payment‑or delivery in respect of which the applicant seeks to execute the decree. (2) Nothing in this section shall be deemed‑ (a) to preclude the Court from ordering the execution of a decree upon an application presented after the expira?tion of the said term of twelve years, where the judgment debtor has, by fraud .or force, prevented the execution of the decree at some time within twelve years immediately before the date of the application ; or (b) to limit or otherwise affect the operation of article 183 of the First Schedule to the Limitation Act, 1908." The date from which the period of twelve years is to be computed is the date of the decree sought to be executed. That date is the 5th of May 1939 and the application for execution has been put in on the 29th of October 1951, i.e., more than twelve years from the date of the decree: The learned Senior Sub‑Judge has, however, decided this objection in favour of the decree‑holder following Ram Ranbijava Prasad v. Kesho Prasad (A I R 1938 Pat. 401.) wherein it was held that the terminus a quo in section 48, C. P. C. should be the same as in Article 182, Limitation Act. As there was an appeal in this case which was decided by the High Court on the 1st of November 1939, it has been held by the learned Senior Civil Judge that limi?tation has to be reckoned from the date of the decision of the appeal. Before I proceed to examine the reasoning in Ram Ranbijaya Prasad v. Kesho Prasad (supra), I would quote the relevant portion of Article 182 of the Limitation Act; 1908, which runs:‑ "

182. 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. 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 judgment) the date of the decision passed on the review, or (4) (where the decree has been amended) the date of amend?ment, or" In Ram Ranbijaya Prasad v. Kesho Prasad (supra) an appeal against a decree had been dismissed for want of prosecution. The learned judges held that section 48 provides only the maximum period during which applications for execution could be submitted and that the point of time from which limitation would begin is period provided by ‑Article 182 of the Limitation Act. They were of the opinion that otherwise an anomaly would be created. It will be observed that Article 182 provides for cases "where there has been a appeal". The learned judges relied upon Nagendra Nath v. Suresh (A I R 1932 P C 165.) which was a case under Article 182, Limitation Act, and where their Lordships of the Privy Council had held that even if an appeal had been dismissed for want of prosecution, time would, on account of the wording of Article 182, run from the date of the decision of the appeal. With all respects I am unable to agree that while interpreting section 48, C. P. C. we should import considerations based on Article 182 Limitation Act. If the legislature intended that even in cases arising under section 48; limitation should be reckoned from the point of time mentioned in Article 182, it could easily have said so. The legislature is deemed to be well aware of the difference in the language, which is used in the two provisions. Assuming, without conceding that an anomaly is created, it would be for the legislature to remove the anomaly and not for the Courts as the words used are capable of only one interpretation that is that the date from which time is to be reckoned is the date of the decree. The only question which is to be decided by the Court is the date of the decree of which execution is sought. If an appeal be filed against a decree, of course quite apart from any recourse to the wording of Article 182, limitation would, in cases where there is an adjudication of the appeal on merits, run from the date of the decision of the appeal because when an appeal has been filed against a decree o whether it relates to the whole or a portion of the decree, the decree of the appellate Court is the only decree that survive the decision of the appeal. That is a well established proposition for which I may simply refer to the Full Bench case Kristnama Chariar v. Mangammal (I L R 26 Mad. 91.). The difficulty, however, in the present case is that the appeal which was filed before the High Court was not one directed against the decree itself but against the order filing the award. An appeal lies against the order filing the award but it lies against a decree based on an award only in so far as it is not in accordance with the award. The original record is before me and I have verified that the appeal was in fact an appeal against the order filing the award, the section relied upon for the appeal being section 104 which relates to appeals against orders. There is no doubt that had the appeal been accepted, the decree of the trial Court would have automatically fallen. However, the question to be decided only this : Is the decree which is sought to be executed the decree of the appellate Court ? The answer to this question has to be in the negative. While an appeal against the decree would always result, whenever there is an adjudication of the appeal by the appellate Court in a disappearance of the decree of the trial Court altogether, an appeal against an order based on a decree cannot on any legal principle merge the decree of the trial Court in that of the appellate Court. In fact there is no appellate decree at all in such a case. Ram Ranbijaya Prasad v. Kesho Prasad (supra) was not followed in two later cases of the same Court which are Mst. Dulhin v. Harihar Gir (A I R 1939 Pat. 607,) and Jagannath v. Sadhu Charan (A I R 1943 Pat. 371,) Mst. Dulhin v. Harihar Gir (supra), was a case of amendment of a decree. The objection taken was that if more than twelve years had passed from the date of the decree, section 48, C. P. C. would bar its execution. It was argued on behalf of the decree‑holder on the authority of Ram Ranbiiaya Prasad v. Kesho Prasad (supra), that limitation should begin from the date of the amended decree as provider in Article

182. This contention was rejected. The learned Judges pointed out that the matter was to be decided on the words of section 48 itself. Jagannath v. Sadhu Charan (supra; is a case of dismissal of a revision in default. The principle was accepted that a revision has the same effect as an appeal, However, it was held that dismissal in default would result in there being no decree by the appellate Court at all and under section 48, C. P. C., time would be reckoned from the original decree, and not from the date of the dismissal in default. It may be pointed out that if the difference in termini a qua provided by Article 182 and section 48, C. P. C., beg regarded as an anomaly, an anomaly does, regard being had to Privy Council judgments, exist. There are two Privy Council cases dealing with the effect of non‑prosecution of appeal with reference to limitation. The first, Abdul Majid v. Jawahir Lal (I L R 36 All. 350.) was a case under Article 183 of the Limi?tation Act. In that case an appeal to the Privy Council had been dismissed for want of prosecution. Their Lordships held that there was no judicial decision of the matter by the appellate Court, therefore, there was no merger of the decree of the trial Court in that of the appellate Court. They said: "The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognized authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all. To put it shortly, the only decree for sale that exists is the decree, dated the 8th of April 1893, and that is a decree of the High Court of Allahabad. The oper?ation of this decree has never been stayed, and there is no decree of His Majesty in Council in which it has become merged. The period of limitation applying to the enforce?ment of it at all material times was therefore a period of three years. The respondents' right is therefore barred by limitation." The second Privy Council case (to which I have already referred) is Nagendra Nath v. Suresh (supra). That was a case under Article 182 of the Limitation Act. An appeal against the decree sought to be executed had been dismissed or want of prosecution. Their Lordships referred to the words of this Article and said that according to its plain words in a case where there had been an appeal, limitation was to he reckoned from the date of the decision of the appeal. There had been an appeal and, therefore, time must be reckoned from the decision without regard to the fact whether the appeal had been decided on merits or for want of prosecution. Following is the passage from their Lordships' judgment which will explain their Lordships' view on the matter :‑ "Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the article 'where there has been an appeal,' time is to run from the date of the decree of the appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it ; 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 words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment‑debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors, and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court. But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of 24th June 1920, time only ran against the appellants from 24th August 1922, the date of the appellate Court's decree." It is clear from the two cases that their Lordships had fixed different starting points in cases falling under Articles 182 and 183, Limitation Act. We cannot, therefore, say that because there is a difference with respect to the starting point between Article 182 and section 48, we should apply the language used in Article 182 to section 48 also. Although the particular point with which I am concerned did not arise for decision in any reported case, there are a number of authorities in support of the proposition that while deciding a case under section 48, we should not refer to the wording of Article 182, and there seems a consensus of opinion on the point. I will cite two cases only. In Ramchandra Rao v. Parasuramayya (A I R 1940 Mad. 127.) it was held that when a decree had been amended, time would run under section 48, C. P. C. not from the date of the amendment of the decree but from the date of the decree itself and that the provisions in Article 182 with respect to the amendment of the decree would not affect a case under section 48, C. P. C. In Ganesh Das v. Vishan Das (A I R 1935 Lah. 292.) it was similarly held that the amendment of a decree would not, so far as section 48 was concerned, affect limitation for execution. Nathu Mal v. Jaikaran Dass (A I R 1944 Lah. 68.) may also be referred to. There, the question for consideration was whether section 6 of the Limitation Act would apply to an application under section, 48, C. P. C. It was held that it would not. I hold, therefore, that limitation has to be reckoned from the date of the decree and that the application for execution is time barred. This appeal is accepted but the parties are left to bear their own costs throughout. K. M. A. ??????????? Appeal accepted.