Case: Bhawanipore Banking Corpora-Tion, Ltd Vs. Gouri Shankar Sharma

Fazl Ali, J.1. The only question to be decided in this appeal, which arises out of an execution proceeding is whether the decree under execution is barred by limitation. The first Court held that the decree was not barred, but the High Court has come to the opposite conclusion, and the decree-holder has, after obtaining a certificate under S. 110, Code of Civil Procedure, 1908 appealed to this Court.2. The facts may be briefly stated as follows. On 21/08/1940, a preliminary mortgage decree was passed ex parte in a suit instituted by the appellant to enforce a mortgage. On 19/09/1940, the judgment-debtor made an application under Or.9R.13, Code of Civil Procedure, 1908 , for setting aside the ex parte decree, but this application was rejected on 7/06/1941. On 11/07/1941, the judgment-debtor filed an application under S. 36, Bengal Money-lenders Act. for reopening the preliminary decree, but this application was dismissed for default of appearance on 20/12/1941. Thereafter a final mortgage decree was passed in favour of the appellant, on 22nd December. The judgment, debtor then made an application under Or.9R.9, Code of Civil Procedure for the restoration of the proceedings under. S. 36, money-lenders Act. The application was, however, dismissed on 1/06/1942, both on the ground that no sufficient cause for the non-appearance of the applicant and his failure to take steps in the proceedings was shown and on the ground that no purpose would be served by reopening the preliminary decree after the final decree had been passed. The judgement- debtor thereafter preferred an appeal to the High Court at Calcutta from the decision dismissing his application under O. 9, R 9, but the appeal was dismissed for non-prosecution, on 3/07/1944. On 9/04/1945, the appellant filed an application for executing the decree against the original judgment-debtor, though he had died previously, and this application was dismissed for default on 11/05/1945. On 2/06/1945, the present application for execution was filed, and the question which we have to decide is whether this application is in time.3. It is quite clear that the application for execution having been made more than three years after the date of the final decree, it must be held to be time-barred, unless, as has been contended before us, the case falls under either cl. 2 or cl. 3 of Art. 182, Limitation Act. Under these clauses, time to make the application begins to run from- "(2) Where there has been an appeal the date of the final decree or order of the appellate Court, or the withdrawal of the appeal, or (3) Where there has been a review of judgment the date of the decision passed on the review . . ."4. It is contended that the case is covered by cl. 3, and the ground urged in support of this contention is that the application made by the judgment-debtor for re-opening the preliminary mortgage decree under S.36. Moneylenders Act, must be regarded as an application for review and time should be held to run from the date of the final order passed in the proceedings connected with that application. In our opinion, there is no substance in this contention. The important words in cl. 3 of Art.182 are: (1) "where there has been a review" and (2) "the decision passed on the review." These words show that before a case can be brought under Art.182, cl. 3, it must be shown firstly that the Court had undertaken to review the relevant decree or order and secondly that there has been a decision on the review. In the present case, even if it be assumed that the word "review" has been used in Art. 182 in a large sense and that the application for reopening the decree under S. 36, Bengal Money-lenders Act was an application for review, the appellant cannot succeed, because the Court never under look or purported to review the decree in question. What actually happened was that the application under S. 36 for reopening the preliminary decree (not the final decree which is the decree sought to be executed) was dismissed for default and the application under Or.9R.9, Code of Civil Procedure, 1908 for the restoration of the proceedings under S. 36, Money-lenders Act, was also dismissed. Even if the fact that the judgment debtors application under S. 36 was directed against the preliminary mortgage decree is overlooked, that application having been dismissed for default, the Court never had occasion to apply its mind to the question as to whether the decree could or should be reopened, and hence it cannot be said that "there has been a review" of the decree. The proceedings under Or.9R.9, Code of Civil Procedure are not material to the present discussion because they did not involve a review of the decree under execution but a review, if it is at all possible to call it a review, (which, in our opinion, it is not), of the order dismissing the judgment-debtors application under S. 36 for default.5. It was also suggested by the learned counsel for the appellant that the case might be held to be covered by cl. 2 of Art. 182 on the ground that, even though no appeal was preferred from the trial mortgage decree, the words "where there has been an appeal" are comprehensive enough to include in this case the appeal from the order dismissing the application under Or.9R.9, Code of Civil Procedure , made in connection with the proceedings under S. 36, Money-lenders Act. This argument also is a highly far-fetched one, because the expression "where there has been an appeal" must be read with the words in col. 1 of Art. 182, viz., "for the execution of a decree or order of any civil Court.. ...." and however broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution.

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

Explanation:
0[ds]In our opinion, there is no substance in this contention. The important words in cl. 3 of Art.182 are: (1) "where there has been a review" and (2) "the decision passed on the review." These words show that before a case can be brought under Art.182, cl. 3, it must be shown firstly that the Court had undertaken to review the relevant decree or order and secondly that there has been a decision on the review. In the present case, even if it be assumed that the word "review" has been used in Art. 182 in a large sense and that the application for reopening the decree under S. 36, BengalAct was an application for review, the appellant cannot succeed, because the Court never under look or purported to review the decree in question. What actually happened was that the application under S. 36for reopening thedecree (not the final decree which is the decree sought to be executed) was dismissed for default and the application under Or.9R.9, Code of Civil Procedure, 1908 for the restoration of the proceedings under S. 36,Act, was also dismissed. Even if the fact that the judgment debtors application under S. 36 was directed against the preliminary mortgage decree is overlooked, that application having been dismissed for default, the Court never had occasion to apply its mind to the question as to whether the decree could or should be reopened, and hence it cannot be said that "there has been a review" of the decree. The proceedings under Or.9R.9, Code of Civil Procedure are not material to the present discussion because they did not involve a review of the decree under execution but a review, if it is at all possible to call it a review, (which, in our opinion, it is not), of the order dismissing theapplication under S. 36 forargument also is a highlyone, because the expression "where there has been an appeal" must be read with the words in col. 1 of Art. 182, viz., "for the execution of a decree or order of any civil Court.. ...." and however broadly we may construe it, it cannot be held to cover an appeal from an order which is passed in a collateral proceeding or which has no direct or immediate connection with the decree under execution.