State Vs. Hindustan Construction and Co. - Court Judgment

SooperKanoon Citationsooperkanoon.com/898804
SubjectLimitation
CourtJammu and Kashmir High Court
Decided OnJul-10-1992
Case NumberC.I.M.A. No. 85 of 1981
Judge B.A. Khan, J.
ActsJammu and Kashmir Limitation Act, 1995 Smvt. - Schedule - Article 182(2)
AppellantState
RespondentHindustan Construction and Co.
Appellant Advocate T.J. Thakir, Adv.
Respondent Advocate S.P. Gupta, Adv.
Cases ReferredKrishname Charior v. Mangamal
Excerpt:
- b.a. khan, j. 1. what is the true connection of word 'appeal' in article 182 of the limitation act? does it mean an appeal against the actual decree sought to be executed or any appeal apart from that whether it affects the decree or not. how about a decree portion whereof only has been appealed against. what would be the starting point of period of limitation for execution of portion of decree not appealed against? 2. these interesting, though complicated, questions arise in this appeal, which is directed against the order of executing court (addl. district judge, jammu) dated 31 .x.81 allowing respondent's (decree holder's) execution application. from the record it transpires that an award was passed in arbitration proceedings initiated by the respondent-contractor. it was partly decreed by this court on 31-12-1975 directing recovery of rupees 1,09,159.49 with 6% interest from the appellant (judgment-debtor). respondent felt aggrieved as his two claims (no. 2 and 55) had been disallowed and filed lpa no. 7 of 1973 against the decree which was dismissed on 31-12-1975. continuing the battle respondent again moved the hon'ble supreme court in s.l.p. which is pending. meanwhile, the company filed an execution application for recovery of decretal amount on 23-7-1979 which was dismissed in default on 28-3-1981; it filed second application for execution on 13-5-1981 and it was resisted on the grounds that it was time-barred as the first application was so and that it was not in conformity with mandatory provisions of order xxi rule 11 cpc. the executing court overruled the objection holding that first execution application could not be said to be barred by time due to pendency of respondent's slp in the supreme court in which final decree had yet to be passed. this appeal is directed against the order in a bid to persuade this court to hold otherwise. 3. before adverting to rival contention, it would be appropriate to make a brief reference to provisions of article 182 of the limitation act. clause (1) of this article provides for three years period of limitation from the date of decree or order for making an execution application. clause (2), however, lays down that where there has been appeal, three years from the date of final decree or order of the appellate court or the withdrawal of the appeal. therefore, the present controversy turns on the interpretation of clause (2) and particularly the import of word 'appeal' used therein. 4. mr. thakur lc for appellant says that appeal, as contemplated by article 182 means only that appeal which affects the decree sought to be executed. if the appeal is made in respect of an ancillary matter and there is no chance of the result reflecting or impinging upon the decree sought to be executed, it is not covered by the article. proceeding on this premise he submits that decree under execution had become executable on 25-7-1973 when it was passed as no appeal had been filed against it and at worst on 31-12-1975, when it was affirmed and respondent's lpa dismissed. even if limitation be taken to run from the date of appellate decree, respondent's first execution application admittedly filed after the expiry of three years was time-barred and so was the second application and there was no question of pending slp before the supreme court furnishing any starting point for the limitation. he derived support from air 1941 madras 40. 5. mr. gupta, on the other hand argued that article 182 does not envisage bissection of the decree. where there is an appeal --whether against part or against whole decree -- limitation will run from date of appellate decree, which in this case would be the decree to be passed by the apex court ultimately. the pendency of appeal, according to him, only suspends period of limitation and does not debar execution which the decree-holder was free to take meanwhile. he relied upon air 1954 madras 170 and full bench judgment of appellate civil court in krishname charior v. mangamal ilr 26 mad 91 (fb), in support of his contention. 6. there is no definition of appeal in the cpc. therefore, the word will have to be given its ordinary acceptation and any application by a party, to an appellate court asking it to set aside or reverse decision of the subordinate court is an appeal. therefore, so long as an appellate court can reverse, revise or in any matter effect the decision of a lower court including the portion left out of appeal it is inconsequential whether the appeal is directed against the whole decree or against a part thereof. to that extent, there is no choice, but to fall in line with the predominant view that article 182 does not make any distinction whether the appeal is against the whole decree or a part thereof and in that case date of final appellate decree is the starting point of limitation for the execution of decree. in fact the issue has not been free from controversy and the courts have viewed it divergently from time to time depending upon the nature and circumstances of the case. the privy council looked at the matter thus in air 1932 pc 165:-- 'there is no warrant for reading into words 'where there has been appeal', any justification either as to character of the appeal or as to the parties to it; the words mean just what they are. so long as there is any question sub judice between any of the parties those affected shall not be compelled to persue the so often thorny path of execution, which if 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. hence the contention that an appeal in order to save limitation under clause (2) of article 182 must be one to which persons affected were parties and that it must also be one in which the whole decree was imperilled is not sound'. 7. in air 1933 madras 315 nair (j) posed the question:-- 'appeal from what decree or order? surely appeal from decree or order sought to be executed.' this view found more support in air 1939 madras 157 and king (j) noticing conflicting views of various courts in the matter though subscribing to the legal position emnunciatecl by privy council in the case (supra) interpreted the expression 'where there has been an appeal' to mean something which affects that decree or order sought to be executed irrespective of whether or not the appeal was directed against the original decree or order. 8. his lordship reiterated the legal position in air 1940 mad 40 and harmonising it with earlier judgment clarified the position thus :-- 'word appeal in article 182(2) means an appeal which affects decree sought to be executed. the decree in any other appeal can't furnish a starting point of limitation.' 9. in mangamel's case, ilr 26 mad 91 (fb), question arose how far the doctrine that when a decree is taken in appeal to the higher court, the decree passed in appeal superseds the trial court decree and becomes the executable decree in the suit would be applicable in a case where the appeal was in respect of a portion of the subject matter of suit. the contention raised in this case was that as regards un-appealed portion, there was no impediment to execution and, therefore, as to that limitation should be reckoned from the date of the decree of the first court. the contention was rejected and the full bench answered the reference in these terms :-- 'when an appeal is preferred from a decree of a court of first instance, the suit is continued in the court of appeal and reheard either in part or in whole, according as the whole suit is litigated again in the court of appeal or only a part of it. the final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the court of first instance. the mere fact that matter is litigated only in part in the court of appeal cant convert or split the suit into two and there can be only one final decree in that suit viz the decree of the court of appeal. there can't be two final decrees in suit, one by the court of first instance and the order by the court of appeal.' the principle laid down reiterated in air 1954 mad 170, thus (at page 172) :- 'if the true jurisdictional position is that decree in appeal superseds the decree of trial court and becomes decree in action, it should make no difference whether person against whom execution is sought is a party to the appeal or not any more than whether appeal related to the entire subject matter of the suit or only a part thereof. in either case, there can be only one decree in a suit and it must be held that the only decree which is capable of execution is the decree passed in appeal.' the legal position that emerges can be summarised as under: 1. that word 'appeal' in article 182 (2) means any application even in the shape of revision or a review seeking to set aside, reverse or vary a decision of the court: 2. the appeal need not be directed against the real and original decree. but so long as it has the potential of affecting the decree sought to be executed some way, it will be an appeal within the meaning of article 182(2); 3. the appeal must affect the decree sought to be executed. if it does not, it will not fall within the purview of article 182(2); 4. it is immaterial whether appeal is filed against a part of the decree or against the whole decree. in either case, limitation prescribed by article 182 (2) will run from the date of final appellate decree. in other words article 182(2) does not envisage bisection of decree. 5. it is not necessary that where an appeal is preferred against a part of the decree, the whole decree should be imperilled. given regard to this legal position, contentions raised by mr. thakur should stand adequately answered. his submission that slp in the hon'ble supreme court cant affect the decree sought to be executed, which according to him, had become executable on being passed by learned single judge and alternatively when respondent's lpa was dismissed does not seem to be rightly conceived. there should be no doubt left now that slp is an appeal within the meaning of article 182(2) as it seeks to revise/vary the decree passed by this court. that being so. it is immaterial whether the remedy of appeal is provided by the statute or by the constitution, so long as it seeks to revise, set aside and vary the decree sought to be executed. 10. as regards whether pending slp has the potential of varying or revising the decree passed by this court, it admits of no doubt that the slp can only lead to two results : (i) either to allow respondent's claim in which case the decree passed by this court shall stand revised and varied, or (ii) to affirm the decree passed by this court and in that event it will be the final appellate decree passed. in both cases, therefore, it will stand affected. once so affected, it satisfies the test of an appeal as contemplated by article 182(2) and the natural corrollary would be that limitation will run from the date of final decree, order passed in the slp. any other contrary view would lead to absurd consequences and split the suit and decree into two which will militate against the firmly established juristic position. 11. going by this logic, it still remains to be seen whether respondent can be allowed to take execution of the portion of decree in his favour. mr. gupta suggests that pendency of appeal against the other part of the decree suspends running of limitation and does not debar execution of the part favouring the decree-holder. the argument appears contradictory in terms. if the final decree is taken to be the one passed by the appellate court, then the un-appealed portion must also await the ultimate outcome. otherwise it would amount to repeatedly subjecting the judgment-debtor to the thorny path of execution, an expression aptly used by the privy council. i don't suppose that it can be the intention of legislature. if this view is accepted, it would enable the decree-holder to have best of both the worlds i.e. to seek unending satisfaction of decree in parts and subvert the very spirit of limitation law. therefore, mr. gupta's submission, in this regard, can't be accepted. 12. viewed thus, i hold that limitation for execution of the decree in the present case will run from the date of decision in the slp and till then execution proceedings taken by the respondent in respect of the part decree shall remain in abeyance and await outcome in the slp. this relieves me of the necessity of examining other contentions raised by the learned counsel for parties. 13. this appeal is accordingly disposed of. record be returned.
Judgment:

B.A. Khan, J.

1. What is the true connection of word 'Appeal' in Article 182 of the Limitation Act? Does it mean an appeal against the actual decree sought to be executed or any appeal apart from that whether it affects the decree or not. How about a decree portion whereof only has been appealed against. What would be the starting point of period of limitation for execution of portion of decree not appealed against?

2. These interesting, though complicated, questions arise in this appeal, which is directed against the order of executing court (Addl. District Judge, Jammu) dated 31 .x.81 allowing respondent's (decree holder's) execution application. From the record it transpires that an award was passed in arbitration proceedings initiated by the respondent-contractor. It was partly decreed by this court on 31-12-1975 directing recovery of Rupees 1,09,159.49 with 6% interest from the appellant (judgment-debtor). Respondent felt aggrieved as his two claims (No. 2 and 55) had been disallowed and filed LPA No. 7 of 1973 against the decree which was dismissed on 31-12-1975. Continuing the battle respondent again moved the Hon'ble Supreme Court in S.L.P. which is pending. Meanwhile, the Company filed an execution application for recovery of decretal amount on 23-7-1979 which was dismissed in default on 28-3-1981; It filed second application for execution on 13-5-1981 and it was resisted on the grounds that it was time-barred as the first application was so and that it was not in conformity with mandatory provisions of Order XXI Rule 11 CPC. The executing court overruled the objection holding that first execution application could not be said to be barred by time due to pendency of respondent's SLP in the Supreme Court in which final decree had yet to be passed. This appeal is directed against the order in a bid to persuade this court to hold otherwise.

3. Before adverting to rival contention, it would be appropriate to make a brief reference to provisions of Article 182 of the Limitation Act. Clause (1) of this Article provides for three years period of limitation from the date of decree or order for making an execution application. Clause (2), however, lays down that where there has been appeal, three years from the date of final decree or order of the appellate court or the withdrawal of the appeal. Therefore, the present controversy turns on the interpretation of Clause (2) and particularly the import of word 'appeal' used therein.

4. Mr. Thakur LC for appellant says that appeal, as contemplated by Article 182 means only that appeal which affects the decree sought to be executed. If the appeal is made in respect of an ancillary matter and there is no chance of the result reflecting or impinging upon the decree sought to be executed, it is not covered by the Article. Proceeding on this premise he submits that decree under execution had become executable on 25-7-1973 when it was passed as no appeal had been filed against it and at worst on 31-12-1975, when it was affirmed and respondent's LPA dismissed. Even if limitation be taken to run from the date of appellate decree, respondent's first execution application admittedly filed after the expiry of three years was time-barred and so was the second application and there was no question of pending SLP before the Supreme Court furnishing any starting point for the limitation. He derived support from AIR 1941 Madras 40.

5. Mr. Gupta, on the other hand argued that Article 182 does not envisage bissection of the decree. Where there is an appeal --whether against part or against whole decree -- limitation will run from date of appellate decree, which in this case would be the decree to be passed by the apex court ultimately. The pendency of appeal, according to him, only suspends period of limitation and does not debar execution which the decree-holder was free to take meanwhile. He relied upon AIR 1954 Madras 170 and Full Bench judgment of appellate Civil Court in Krishname Charior v. Mangamal ILR 26 Mad 91 (FB), in support of his contention.

6. There is no definition of appeal in the CPC. Therefore, the word will have to be given its ordinary acceptation and any application by a party, to an appellate court asking it to set aside or reverse decision of the Subordinate court is an appeal. Therefore, so long as an appellate court can reverse, revise or in any matter effect the decision of a lower court including the portion left out of appeal it is inconsequential whether the appeal is directed against the whole decree or against a part thereof. To that extent, there is no choice, but to fall in line with the predominant view that Article 182 does not make any distinction whether the appeal is against the whole decree or a part thereof and in that case date of final appellate decree is the starting point of limitation for the execution of decree. In fact the issue has not been free from controversy and the courts have viewed it divergently from time to time depending upon the nature and circumstances of the case. The Privy Council looked at the matter thus in AIR 1932 PC 165:--

'There is no warrant for reading into words 'where there has been appeal', any justification either as to character of the appeal or as to the parties to it; the words mean just what they are. So long as there is any question sub judice between any of the parties those affected shall not be compelled to persue the so often thorny path of execution, which if 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. Hence the contention that an appeal in order to save limitation under Clause (2) of Article 182 must be one to which persons affected were parties and that it must also be one in which the whole decree was imperilled is not sound'.

7. In AIR 1933 Madras 315 Nair (J) posed the question:-- 'Appeal from what decree or order? surely appeal from decree or order sought to be executed.' This view found more support in AIR 1939 Madras 157 and King (J) noticing conflicting views of various courts in the matter though subscribing to the legal position emnunciatecl by Privy Council in the case (supra) interpreted the expression 'where there has been an appeal' to mean something which affects that decree or order sought to be executed irrespective of whether or not the appeal was directed against the original decree or order.

8. His Lordship reiterated the legal position in AIR 1940 Mad 40 and harmonising it with earlier judgment clarified the position thus :--

'Word appeal in Article 182(2) means an appeal which affects decree sought to be executed. The decree in any other appeal can't furnish a starting point of limitation.'

9. In Mangamel's case, ILR 26 Mad 91 (FB), question arose how far the doctrine that when a decree is taken in appeal to the higher Court, the decree passed in appeal superseds the trial Court decree and becomes the executable decree in the suit would be applicable in a case where the appeal was in respect of a portion of the subject matter of suit. The contention raised in this case was that as regards un-appealed portion, there was no impediment to execution and, therefore, as to that limitation should be reckoned from the date of the decree of the first Court. The contention was rejected and the Full Bench answered the reference in these terms :--

'When an appeal is preferred from a decree of a Court of first instance, the suit is continued in the Court of appeal and reheard either in part or in whole, according as the whole suit is litigated again in the Court of appeal or only a part of it. The final decree in the appeal will thus be the final decree in the suit, whether that be one confirming, varying or reversing the decree of the Court of first instance. The mere fact that matter is litigated only in part in the Court of appeal cant convert or split the suit into two and there can be only one final decree in that suit viz the decree of the Court of appeal. There can't be two final decrees in suit, one by the Court of first instance and the order by the Court of appeal.'

The principle laid down reiterated in AIR 1954 Mad 170, thus (at page 172) :-

'If the true jurisdictional position is that decree in appeal superseds the decree of trial Court and becomes decree in action, it should make no difference whether person against whom execution is sought is a party to the appeal or not any more than whether appeal related to the entire subject matter of the suit or only a part thereof. In either case, there can be only one decree in a suit and it must be held that the only decree which is capable of execution is the decree passed in appeal.'

The legal position that emerges can be summarised as under:

1. That word 'appeal' in Article 182 (2) means any application even in the shape of revision or a review seeking to set aside, reverse or vary a decision of the Court:

2. the appeal need not be directed against the real and original decree. But so long as it has the potential of affecting the decree sought to be executed some way, it will be an appeal within the meaning of Article 182(2);

3. the appeal must affect the decree sought to be executed. If it does not, it will not fall within the purview of Article 182(2);

4. It is immaterial whether appeal is filed against a part of the decree or against the whole decree. In either case, limitation prescribed by Article 182 (2) will run from the date of final appellate decree. In other words Article 182(2) does not envisage bisection of decree.

5. It is not necessary that where an appeal is preferred against a part of the decree, the whole decree should be imperilled.

Given regard to this legal position, contentions raised by Mr. Thakur should stand adequately answered. His submission that SLP in the Hon'ble Supreme Court cant affect the decree sought to be executed, which according to him, had become executable on being passed by learned single Judge and alternatively when respondent's LPA was dismissed does not seem to be rightly conceived. There should be no doubt left now that SLP is an appeal within the meaning of Article 182(2) as it seeks to revise/vary the decree passed by this Court. That being so. It is immaterial whether the remedy of appeal is provided by the statute or by the Constitution, so long as it seeks to revise, set aside and vary the decree sought to be executed.

10. As regards whether pending SLP has the potential of varying or revising the decree passed by this Court, it admits of no doubt that the SLP can only lead to two results :

(i) either to allow respondent's claim in which case the decree passed by this Court shall stand revised and varied, or

(ii) to affirm the decree passed by this Court and in that event it will be the final appellate decree passed.

In both cases, therefore, it will stand affected. Once so affected, it satisfies the test of an appeal as contemplated by Article 182(2) and the natural corrollary would be that limitation will run from the date of final decree, order passed in the SLP. Any other contrary view would lead to absurd consequences and split the suit and decree into two which will militate against the firmly established juristic position.

11. Going by this logic, it still remains to be seen whether respondent can be allowed to take execution of the portion of decree in his favour. Mr. Gupta suggests that pendency of appeal against the other part of the decree suspends running of limitation and does not debar execution of the part favouring the decree-holder. The argument appears contradictory in terms. If the final decree is taken to be the one passed by the appellate Court, then the un-appealed portion must also await the ultimate outcome. Otherwise it would amount to repeatedly subjecting the judgment-debtor to the thorny path of execution, an expression aptly used by the Privy Council. I don't suppose that it can be the intention of Legislature. If this view is accepted, it would enable the decree-holder to have best of both the worlds i.e. to seek unending satisfaction of decree in parts and subvert the very spirit of limitation law. Therefore, Mr. Gupta's submission, in this regard, can't be accepted.

12. Viewed thus, I hold that limitation for execution of the decree in the present case will run from the date of decision in the SLP and till then execution proceedings taken by the respondent in respect of the part decree shall remain in abeyance and await outcome in the SLP. This relieves me of the necessity of examining other contentions raised by the learned counsel for parties.

13. This appeal is accordingly disposed of. Record be returned.