Patkar, J.
1. This is an appeal in execution of the decree in suit No. 214 of 1923 against the order of the learned First Class Subordinate Judge dismissing the application of the applicant for the necessary certificate to be sent to the First Class Subordinate Judge at Sholapur under Order XXI, rules 5 and 6, and for an order of transfer of the execution under Section 39 of the Civil Procedure Code. The principal ground on which the learned First Class Subordinate Judge dismissed the application is that the application for execution is beyond time under Article 182 of the Indian Limitation Act.
2. It is necessary to state the facts which have given rise to the contention that the application for execution is barred by limitation. In Civil Suit No. 214 of 1923 the assignors of the appellant, who were defendants Nos. 1 and 2, had obtained a decree against defendant No. 3 on December 14, 1925, to the extent of Rs. 42,940. Defendant No. 3 applied for a review and appeal No. 35 of 1926 was filed in the High Court against the original decree by defendant No. 2. In July 1926, the Subordinate Judge allowed the review application and on that date the decree was amended by reducing the amount to Rs. 27,940. Defendants Nos. 1 and 2 filed Appeal No. 65 of 1926 to the High Court against the order granting the review. But it appears that no appeal was filed against the final decree reducing the amount to Rs. 27,940. Both the appeals were dismissed by this Court. The judgment of the High Court is reported in Shidramappa v. Gurushantappa (1928) 31 Bom. L.R. 137. Appeal No. 35, which was brought against the original decree, was dismissed on the ground that it ceased to exist having regard to the later developments in the case. Appeal No. 65 was dismissed on the ground that the lower Court had jurisdiction to grant the review and the appeal was not maintainable under the Civil Procedure Code against the order granting a review. An appeal could lie only on the grounds mentioned in Order XLVII, Rule 7, as Clause (w) of Rule 1 of Order XLIII had been repealed by a rule of this Court under Section 122 of the Civil Procedure Code. The decision of the appeal was embodied in a decree in which the order of the lower Court was confirmed with costs. A decree was drawn up and an order of costs was also drawn up.
3. The learned Subordinate Judge held that time ran from the date of the amended decree which was July 15, 1926, and that the date of the decision in the appeal, October 29, 1928, did not give a fresh starting point of limitation under Clause (2) of Article 182 of the Indian Limitation Act. The reasons given by the learned Subordinate Judge are, (1) that the appeal was not from the decree sought to be executed, (2) that the appeal was not competent for the reasons given in the judgment of the High Court, and (3) that the appeal was disposed of on a preliminary objection raised by the respondent and was not heard and decided on the merits and there was no real adjudication on the merits.
4. If there had been no appeal against the order granting the review, time would have begun to run from July 15, 1926, the date of the decision passed on review under Clause (3) of Article 182. The question arising in this appeal is whether time begins to run from October 29, 1928, the date of the decree or order of the appellate Court, where there has been an appeal.
5. On behalf of the appellant reliance is strongly placed on the recent decision of the Privy Council in the case of Nagendra Nath Bey v. Suresh Chandra Dey (1932) L.R. 50 IndAp 288 31 Bom. L.R. 1065 where it was held that the words of Article 182, Clause (2), are plain and without any qualification either as to the character of the appeal or as to the parties to it, and that where an appeal, irregular in form and insufficiently stamped, is dismissed both on the ground of irregularity and upon the merits, it is nevertheless an 'appeal' within the meaning of Article 182, Clause (2); and though the judgment-debtors against whom execution is sought are not parties to the appeal, time only runs against the decree-holders from the date of the appellate Court's decree dismissing the appeal.
6. The facts in the present case are somewhat adjacent to the facts in the case of Nagendra Nath Dey. It appears that in that case the receiver had borrowed Rs, 18,000, from some of the co-sharers, and the result was that some of the co-sharers were mortgagees and all the co-sharers were mortgagors. A preliminary decree was passed at the instance of Madan Mohan one of the co-sharers and mortgagees, and on June 24, 1920, the Subordinate Judge passed a final decree at the instance of the said Madan Mohan, though it was drawn up on August 2, 1920. On August 27, Madan Mohan presented an application to the High Court purporting to appeal from the order of the Subordinate Judge alleging that no decree was drawn up. His objection was in respect of only a part of the decree in so far as the decision went against him in respect of the assignment from two of the co-sharers and mortgage-decree-holders, and he did not join as parties to the appeal the other decree-holders or the judgment-debtors. The appeal which was insufficiently stamped, was admitted and heard, and was dismissed on the ground of irregularity and also on the merits. But the dismissal was embodied in a decree of the High Court dated August 24, 1922, and it was the effect of the appeal that was considered by their Lordships of the Privy Council, who held that though the appeal was incompetent and was insufficiently stamped, it was no less an appeal because it was irregular or incompetent.
7. On behalf of the respondent reliance has been placed on the decisions of the Privy Council in the cases of Abdul Majid v. Jawahir Lal I.L.R. (1914) All. 350 16 Bom. L.R. 395 Batuk Nath v. Munni Dei I.L.R. (1914) All. 284 16 Bom. L.R. 360 and Sachindra Nath Roy v. Maharaj Bahadur Singh I.L.R. (1921) Cal. 203 24 Bom L.R. 659 where it was held that 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 against. Those cases related to a dismissal of appeal for want of prosecution, and it was, therefore, held that the appeal must be considered not to have been filed, and the appellant was in the same position as if he had not appealed at all.
8. In the present case appeal No. 65 was not dismissed for want of prosecution. Notice was served, arguments were heard, and the order confirming the order of the lower Court was embodied in a decree of the High Court.
9. It is, however, contended, first, that the appeal did not lie and was incompetent, and, secondly, that it did not decide the rights of the parties, and, therefore, was not a final decree of the appellate Court.
10. The remarks of the Privy Council that an appeal is no less an appeal because it is irregular or incompetent would dispose of the first contention. It is observed by their Lordships of the Privy Council that there is no definition of appeal in the Civil Procedure Code and that any application by a party to an appellate Court asking to set aside a decision of a Subordinate Court is an appeal within the ordinary acceptation of the term. The appeal against an order granting the review would be included in the above definition. If the appeal had been successful the previous unamended decree would have remained the only subsisting decree capable of execution and the subsequent amending decree ipso facto would have been of no effect.
11. With regard to the second contention involving the meaning of the word 'final,' it appears that their Lordships of the Privy Council have not referred to the word 'final' when they stated as follows :-' They think that the question must bo 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.' It appears that the word 'final' is used by antithesis to the word 'interlocutory.' If the word 'final' was intended to be used in the sense of finally disposing of the rights of the parties to the suit, it appears that there would be no necessity to resort to the second clause of Article 182 for counting the time from the date of the appellate decree, for if the decree of the appellate Court reverses the decree of the first Court or embodies the decision of the lower Court, in other words, if the decree of the lower Court is merged in the decree of the appellate Court, time must obviously run from the date of the appellate decree. Though under Section 37 of the Civil Procedure Code, the application for execution is to be made to the Court of the first instance, it is the decree of the appellate Court that is being executed and time must run from the date of the appellate decree under Clause (1), Article 182. It is only when the decree sought to be executed is the decree of the lower Court and not merely of the appellate Court, and the appeal is with regard to a part of the decree or against any other decision in the suit which is sub judice between the parties that the question as to whether time would run from the date of the appellate decree would arise for decision, and Clause (2) of Article 182, would come into operation. I think, therefore, that the words of Article 182, Clause (2), must be understood in their plain meaning and the question in each case is whether there has been an appeal, and if that is the case, time must run from the date of the decree of the appellate Court if the decision of the appellate Court is not interlocutory but final. In the present case, Appeal No. 65 was dismissed and the order of the lower Court was confirmed and that decision was embodied in the decree of this Court.
12. In Narsingh Sewak Singh v. Madho Das I.L.R. (1882) All. 274 where there had been a review of judgment and an appeal from the decree passed on review and such decree having been set aside an application was made for the execution of the original decree, it was held that time began to run not from the date of the decree sought to be executed but from the date of the decree of the appellate Court. It was further held that the words 'where there has been an appeal' do not contemplate and mean only an appeal from the decree of which execution is sought but include an appeal from the decree passed on review where there has been a review of judgment on which such decree is based.
13. It is not necessary to go into the cases cited in the judgment of the lower Court, for I think the question has to be decided in accordance with the Privy Council decision to which I have referred. Their Lordships of the Privy Council in Nagendra Nath Dey's case also observe as follows (p. 1071) :-
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 bo 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.
14. I think, therefore, that having regard to the recent Privy Council decision, the view taken by the lower Court is erroneous.
15. We must, therefore, reverse the decree of the lower Court and direct the lower Court to dispose of the application on the merits. Costs of this appeal will be costs in execution.
Barlee, J.
16. I agree. The facts of this case are briefly as follows:- The appellant is an assignee from defendants Nos. 1 and 2 in civil suit No. 214 of 1923 of their right under a decree against defendant No. 3 for Rs. 27,940. Defendants Nos. 1, 2, 3 and 4 and plaintiffs Nos. 1 and 2 were members of one family divided into three branches. Defendants Nos. 1 and 2 formed one branch, defendants Nos. 3 and 4 another branch and plaintiffs Nos. 1 and 2 a third branch. In 1918, wishing to divide, they referred the question of division to an arbitrator who made an award on September 5, 1923. The plaintiffs applied in suit No. 214 of 1923 to have the award filed. On December 14, 1925, the Subordinate Judge made a decree on the award. It provided inter alia that defendant No. 3 should pay Rs. 42,940 to defendants Nos. 1 and 2. On March 6, 1926, defendant No. 3, the judgment-debtor, applied for a review, but before the final order was paseed on his application, defendant No. 2 had filed an appeal to this Court, (Appeal No. 35 of 1926), from the decree as it then stood. The next event was the order of the lower Court in the review application. On July 15, 1926, the Court allowed the application and amended the decree by reducing the amount to be paid by defendant No. 3 to Rs. 27,940. On this, defendants Nos. 1 and 2 filed Appeal No. 65 to this Court challenging therein the right of the learned Subordinate Judge to review his first decree.
17. At this stage, then, there were in existence a decree of the lower Court as amended in review, an appeal against the original decree, and an appeal against the order in review. Both these appeals were dismissed by this Court, the first one because the decree appealed against had ceased to exist, and the second one, Appeal No. 65, because no ground for interference was shown.
18. On August 6, 1929, defendants Nos. 1 and 2 assigned their rights to the present appellant. On September 2, 1929, the present appellant made an application in execution. This application was filed more than three years after the amended decree but less than three years from the date of the decisions of the High Court in the appeals. The question, then, in this case is whether the appellant is entitled to the benefit of Article 182, Clause (2), that is, whether he is entitled to count time from the date of the two orders of this Court in the appeals. That date was October 29, 1928. The learned Subordinate Judge has decided that the application is time-barred. His decision, based on a consideration of a number of authorities, which he has cited, is that time must be reckoned from the date of the amended decree, July 15, 1026, and cannot be enlarged by the operation of the second clause of Article 182.
19. In appeal, Mr. Coyajee has relied on the recent Privy Council decision in the case of Nagendra Nath Dey v. Suresh Chandra Day The facts of that case were somewhat similar to those of the present case. There a mortgage-decree was passed on June 24, 1920. One of the decree-holders, a man named Madan Mohan, was dissatisfied with the order of the Subordinate Judge which disallowed his claim to be substituted for one of the other decree-holders, whoso rights he claimed to have acquired, and he appealed to the High Court, and his appeal purported to be against the order of the said Subordinate Judge of June 24, 1920, rejecting his claim against his co-plaintiff, and he did not join in the appeal the judgment-debtors, that is, the quarrel in the appeal was one between the two plaintiffs. He stated in his appeal that no decree had been drawn up and, therefore, he was appealing against the order of the Subordinate Judge. That was not true. The appeal, however, though irregular in form and insufficiently stamped, as stated by their Lordships at page 1069, was admitted and heard in due course and was dismissed. Later in execution of the original decree, the question arose whether the terminus a quo was the date of the decision of the irregular appeal or the date of the original decree in suit, June 24, 1920. The case went to the Privy Council, where their Lordships, after setting out the facts, stated as follows (p. 1069) :-
If the three years are to be calculated, as the respondents contend, from the date of the decree of the Subordinate Judge, viz., June 24, 1920, the application was manifestly out of time ; it was within time if the critical date is that of the decree of the High Court of August 24, 1922, and the decision of this question depends on whether Madan Mohan's appeal which was dismissed on the latter data was an appeal within the meaning of the second clause in the third column of the article cited above (i. e. Article 182). The Subordinate Judge held that it was, and that the application was in time ; the judgment-debtor-respondents appealed, and the High Court took the opposite view, and dismissed the application of the appellants
20. Their Lordships, after quoting a number of decisions on the point, ruled as follows (p. 1070):-
Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must bo 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 bo 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.
21. This being the case, we have to decide on the plain meaning' of the words, apart from authority, as to whether in the present ease there has been an appeal which will enlarge the period of limitation. Certainly, it cannot be denied that there has been an appeal, and the argument that an appeal to come within the meaning of the Article must be an appeal from an original decree cannot be accepted in view of their Lordships' dictum that nothing must be added to the words of the Article. But there remains the question, what is the meaning of the term 'final decree,' and on this point we have heard an interesting argument. Mr. Rao contends that in this case there was no decree which can be called final. His view is that to be final a decree must be one which finally determines the rights of the parties to a suit, that is, it must be an appeal which confirms or varies an original decree of a lower Court. This view the learned advocate has supported by reference to two decisions of the Privy Council in Abdul Majid v. Jawahir Lal I.L.R. (1914) All. 350 16 Bom. L.R. 395 and Batuk Nath v. Munni Dei I.L.R. (1914) All. 284 16 Bom. L.R. 360 and one decision of the Privy Council which is in Sachindra Nath Roy v. Maharaj Bahadur Singh I.L.R. (1921) Cal. 203 21 Bom. L.R. 659 But in none of these cases did the same question arise as we have to answer here. In each the order relied on as a final decree was merely one which dismissed an appeal for want of prosecution. We have to interpret the Article, by giving the words their natural and ordinary meaning, and I am of opinion, therefore, that the words' final decree' merely indicate the final order by which an appellate Court decides an appeal and that we cannot interpret the Article to mean that the decree must be one which finally disposes of the suit and merges in itself the decretal order of the original Court. Final appears to be used in contradistinction with interlocutory. If we were to hold that a decree cannot be final unless it merges in itself the decree of the first Court, we must confine this Article to appeals from decrees, and there at once we are met with the difficulty that their Lordships of the Privy Council in Nagendra Nath Dey's case have decided that there is no justification for confining the word 'appeal' to appeals from decrees. In my opinion, then, the recent decision in that case has made it necessary for us to reverse the decision of the lower Court and allow the appeal.