Case: Sita Ram Goel Vs. Municipal Board, Kanpur &amp; Others

first court passed its judgment, time would certainly begin to run from that date under Art. 181 and the mere fact that the judgment was challenged by way of an appeal which might eventually set it aside, does not, in my opinion, operate to suspend the running of time. Nor would the appellate courts decree into which the decree of the trial court would undoubtedly merge give the party a fresh starting point for limitation."21. The analogy of the decree of the trial court merging into a decree of the appeal court clearly does not apply to these cases. The observations of Rankin C. J. in Hari Mohan v. Parameshwar Shau. AIR 1928 Cal 646 at p. 650: ILR 56 Cal 61 at p. 78 (D) are also in point. Said the learned Chief Justice at p. 650 :"But the application to be made under S. 144 is an application which must be made to the Court of the first instance whether the decree varies or reversed was passed by that Court or a higher Court. That Court has to determine whether the applicant is entitled to any and what benefits, by way of restitution or otherwise, by reason of the decree of the appellate court varying or reversing a previous decree. We have to determine this case under Art. 181, of the Limitation Act, which directs us, in general language, to find out the date on which the applicants right accrued. In the ordinary and natural meaning of the words, their right accrued immediately the District Judge reversed the decision of the trial court, and reduced the amount of the plaintiffs claim. Unless, therefore, we are required by reason of the nature of the matter to ignore the effect of that decision, because it was confirmed on appeal, it seems to me to be wrong to do so. To refuse so to do does not involve the proposition that two decrees for the same thing may be executed simultaneously. Nor does it involve, so far as I can see, the affirmance of any other proposition that can be regarded as inconvenient or absurd."22. Further, when even if the analogy applies, where the decree of the appeal court only affirms the decree of the trial court, this Court has held in the State of U. P. v. Mohd. Nooh (B) Supra, that the original decree of the trial court remains operative This Court has said at p. 95:"In the next place, while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree as in Batuk Nath v. Munni Dei, 41 Ind App. 104: (AIR 1914 PC 65) (E), or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh. 53 Ind App 197 : (AIR 1926 PC 93) (F). but as pointed by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid v. Pirthichand Lal, 46 Ind App 52 : ILR 46 Cal 670 at pp. 678-679: (AIR 1918 PC 151 at pp. 152-153) (G), whatever be the theory under other systems of law, under the Indian law and procedure an, original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is merely one of dismissal. There is nothing in the Indian law to warrant the suggestion that the decree or order of the court or tribunal of the first instance becomes final only on the termination of all proceedings by way of appeal or revision, The filing of the appeal or revision may put the decree or order in jeopardy but until it is reversed or modified it remains effective."23. The original decree being thus operative what we are really concerned with is the commencement of the period of limitation as prescribed in the relevant statute and if the statute prescribes that it commences from the date of the accrual of the cause of action there is no getting behind these word in spite of the apparent iniquity of applying the same. As was pointed out by Mr. Justice Seshagiri Ayyar in Mathu Korakkai Cheety v. Madar Ammal, ILR 43 Mad 185 at p. 213: (AIR 1920 Mad 1 at p. 13) (H)."Therefore in my opinion, the true rule deducible from these various decisions of the Judicial Committee is this: that subject to the exemptions, exclusion, mode of computation and the excusing of delay, etc., which are provided in the Limitation Act, the language of the third column of the first schedule should be so interpreted as to carry out the true intention of the legislature, that is to say, by dating the cause of action from a date when the remedy is available to the party."24. The cause of action in the present case accrued to the appellant the moment the resolution of the Board was communicated to him and that was the date of the commencement of the limitation. The remedy, if any, by way of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under Section 326 of the Act.25. The result is no doubt unfortunate for the appellant, because the trial court found in his favour in regard to his plea of wrongful dismissal. If he had only brought the suit within the period prescribed by S. 326 of the Act, he might possibly have got some relief from the Court. He however chose to wait till the decision of the State Government on his appeal and overstepped the limit of time to his own detriment.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]The principle that the superior courts may not in their discretion issue the prerogative writs unless the applicant has exhausted all his remedies under the special Act does not apply to a suit.There is nothing in S. 58(1) which expressly or impliedly bars his right of suit. The provisions contained in S. 58(2) above would also not help him for the simple reason that the power which is vested in the State Government of suspending an employee pending the decision of the appeal can hardly be said to be a condition of the order of the Board. In any event, that power is given to the State Government for giving relief to the employee who has thus appealed against the rigour of the order of dismissal passed by the Board, against him. The employee may have been dismissed by the Board, in which case on looking at the prima facie aspect of the matter the State Government may as well come to the conclusion that the operation of the order of dismissal may be stayed and he be suspended instead, thus entitling him to subsistence allowance during the pendency of the appeal. If the appeal is eventually dismissed the order of dismissal by the Board will stand; if the appeal is allowed he will be entitled to continue in the employ and enjoy all the benefits and privileges of such employment, but he would not have to starve during the period that the appeal was pending before the State Government. The provisions of Section 58(2) have to be read along with those of Section 58 (1) and it cannot be urged that the power of suspension vested in the State Government is to be exercised in any other case except that of dismissal or removal of the employee by the Board. In the case of any other punishment an order of suspension passed by the State Government pending the decision of the appeal would only mean that during the pendency of the appeal the State Government is empowered to visit on him a higher punishment than what has meted out to him already by the Board. Such an absurd position could never have been thought of by the legislature and the only way in which S. 58 (1) can be read consistently with S. 58 (2) is to construe this power of suspension vested in the State Government to apply only to those cases where a higher punishment than suspension has been meted out by Board to the employee.Sec. 58 (2) merely prescribes the powers which the State Government may exercise in the matter of the appeal which has been filed by the employee against the order of the Board. The more filing of an appeal has not the effect of holding the order of the Board in abeyance or postponing the effect thereof until the decision of the appeal. Such a construction would on the other hand involve that even though a special resolution was passed by the Board dismissing or removing the employee he would continue to function as such and draw his salary pending the decision of his appeal, once he filed an appeal to the State Government as prescribed. We do not see any words in S. 58(1) and (2) which would suspend the operation of the order passed by the Board or render it ineffective by reason of the filing or the pendency of theis, therefore, clear that even though the order passed by the Board was subject to the right of appeal given to the employee in the manner aforesaid, the operation of the order was not suspended nor was its effect in any manner postponed till a later date by the mere filing of the appeal and it became effective from the date when it was communicated to the employee. The cause of action, if any, accrued to the employee on the date of such communication and the period of limitation commenced to run from that date.The original decree being thus operative what we are really concerned with is the commencement of the period of limitation as prescribed in the relevant statute and if the statute prescribes that it commences from the date of the accrual of the cause of action there is no getting behind these word in spite of the apparent iniquity of applying the same.The cause of action in the present case accrued to the appellant the moment the resolution of the Board was communicated to him and that was the date of the commencement of the limitation. The remedy, if any, by way of filing a suit against the Board in respect of his wrongful dismissal was available to him from that date and it was open to him to pursue that remedy within the period of limitation prescribed under Section 326 of the Act.