Adusumilli Gopalakrishnayya and Another vs Parvataneni Bhosayya and Others

Venkatarama Ayyar, J.—The Plaintiffs in Original Suit No. 66 of 1923 in the Court of the District Munsif of Gudivada are the Appellants. That was a suit to recover possession of lands in the occupation of the Respondents with mesne profits. The Defendants resisted it on the ground that the lands formed part of an estate, that they had occupancy rights therein and that the civil Court had no jurisdiction to entertain the action. This defence was overruled by the District Munsif by his decree, dated 31st December 1924, and that was affirmed on appeal in Appeal Suit No. 224 of 1925 by the Subordinate Judge of Masulipatnam. Against this decree the Defendants, preferred a second appeal, No. 1595 of 1926 on the file of this Court. That was heard by Waller and Pandalai, JJ. who, by their judgment, dated 9th December 1931, allowed the appeal, ordered the plaint to be returned to the proper Court and awarded costs to the Defendants in all the three Courts. While the costs payable in the High Court were taxed and inserted in the decree, Exhibit D-2, there was a direction that the costs payable in the lower Courts should be ascertained by those Courts.

On 11th September 1937, the Respondents filed Civil Miscellaneous Petition No. 868 of 1937 in the Court of the Subordinate Judge of Masulipatam for amending the decree in Appeal Suit No. 224 of 1925 by inserting costs as provided in the decree of the High Court. That was ordered on 6th January 1938, and the decree as amended provided:

That the Respondents 1 and 2 do pay to the Petitioners (Appellants) Rs. 63-3-0 and Rs. 20 being their ascertained costs in appeal and in the memo of cross-objections respectively in Appeal Suit No. 224 of 1925.

On 27th March 1944, the Respondents applied in Execution Petition No. 103 of 1944 in the Court of the District Munsif of Gudivada to recover the sum of Rs. 83-3-0 payable for costs in Appeal Suit No. 224 of 1925 as per the amendment, dated 6th January 1938. The Appellants raised the objection that, as the decree of the High Court was passed on 9th December 1931, the execution petition presented on 27th March 1944 was barred u/s 48 of the Code of Civil Procedure. This contention was accepted by the District Munsif and Execution Petition No. 103 of 1944 was dismissed. The Respondents filed an appeal against this order, Appeal Suit No. 108 of 1945, in the Court of the Subordinate Judge, Masulipatam, and that was allowed on the ground that, as the decree passed by the High Court, Exhibit D-2, did not fix the costs but directed the same to be ascertained by the Courts below, there was no decree which could be executed until there was such ascertainment and that, accordingly, the execution application which was filed within twelve years from 6th January 1938, when the costs were ascertained, was not barred u/s 48 of the Code of Civil Procedure. Against this order, the Appellants preferred a second appeal to this Court, Civil Miscellaneous Second Appeal No. 309 of 1946. That was heard by Panchapakesa Ayyar, J. He agreed with the Appellants that the running of the period u/s 48 of the CPC could not be suspended until the costs were ascertained and he relied for his conclusion on the decision in Dakshinamurthi Pillai Vs. Vedamurthy Mudaliar and Others, where it was held that the time for execution of a decree for mesne profits ran from the date of the decree and not from the date of the ascertainment of mesne profits, and on the views expressed in Rajam Naidu and Another Vs. Meenakshi Ammal and Others, . But he sustained the decree of the Subordinate Judge on a new ground taken before him. It appears that the Plaintiff applied for leave to appeal to the Privy Council against the decision of this Court in Second Appeal No. 1595 of 1926 and the petition was withdrawn and dismissed on 18th December 1936 by Mockett and Lakshmana Rao, JJ. Panchapakesa Ayyar, J. held that, as the period mentioned in Section 48 of the CPC would run from the date of the appellate decree where there was an appeal, and as, under Article 182(2) of the Limitation Act, the date of the appellate decree would include the date on which the appeal is withdrawn, the period of twelve years would run u/s 48 of the CPC from 18th December 1936, when the application for leave to appeal to the Privy Council was withdrawn and dismissed. In this view, he confirmed the order of the Subordinate Judge. It is against this judgment that the present appeal has been filed by the Plaintiffs, the learned Judge having granted leave under Clause 15 of the Letters Patent in view of the importance of the question involved.

The Appellants do not dispute the position that, when an appeal is preferred against a decree, the period of twelve years u/s 48 of the CPC must be calculated from the date of the appellate decree, whether the appeal is disposed of after contest or whether it is withdrawn and dismissed. That is established beyond controversy: vide Nacharammal v. Veerappa Chettiar (1946) I M.L.J. 128 and S.T.M. Vyravan Chettiar Vs. R.M. Rayalu Ayyar Nagaswami Ayyar and Co., . The argument on behalf of the Appellants is that an application for leave to appeal to the Privy Council cannot be treated as an appeal against the judgment and decree in Second Appeal No. 1595 of 1926 and the date of the order thereon cannot furnish any starting point for limitation either u/s 48 of the CPC or under Article 182(2) of the Limitation Act. We are of opinion that this contention is well founded. When Article 182(2) of the Limitation Act refers to the date of the appellate decree as the starting point for limitation, it has in mind the decree of a Court which is different from the Court against whose decision the appeal is filed, a Court which has the power to come to its own conclusion on the questions involved and to confirm, vary or set aside the decree against which the appeal is preferred, and a decree passed by the appellate Court supersedes, in theory, the decree appealed against, even when it is one of affirmance and becomes the only decree in the action capable of execution. In Nagendranath De v. Sureshchandra De ILR (1933) Cal. 1 (P.C.), in considering the meaning of the word "appeal" in Article 182(2) of the Limitation Act, the Privy Council observed:

There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate Court, asking to set aside or revise a decision of a subordinate Court, is an appeal with the ordinary acceptation of the term.

Judged by these features, there is no warrant for holding that an application for leave to appeal is in the same position as an appeal to the Privy Council. It is presented to the very Court whose decision is to be appealed against. In hearing such applications, the Court has no jurisdiction to modify or set aside its decision. If the application is dismissed, the order of dismissal does not amount to a decree and it does not supersede the decree which is sought to be appealed against. If the application is ordered and the other requirements of the law are complied with, then, and not until then, is there an appeal and even then the appellate Court which can hear that appeal is the Privy Council or now, the Supreme Court. It is, therefore, impossible to treat an application for leave to appeal to the Privy Council as equivalent to an appeal to the Privy Council. In Kotaghiri Venkata Subbamma Rao v. Vellanki Venkatarama Rao ILR (1901) Mad. 1 (P.C.), the facts were that one Vellanki Venkata Krishna Rao obtained a decree for possession and for mesne profits in Appeal Suit No. 40 of 1885 on the file of the High Court, Madras, on 12th July 1886. Defendants 2 and 3 applied for leave to appeal to the Privy Council and while that was pending, a compromise was entered into between the decree-holder and the third Defendant and on 1st February 1886, the petition for leave to appeal was disposed of, in terms of the compromise. On 28th January 1891, the decree-holder presented an application to execute the decree against Defendants other than two and three. They pleaded that it was barred by limitation as it was presented more than three years from the date of the decree, namely, 12th July 1886. The contention of the decree-holder was that the period of limitation began to run from the date of the disposal of the application for leave to appeal to the Privy Council which was on 1st February 1888. In rejecting this contention and holding that the execution petition was time barred, the Privy Council observed:

...when closely examined Mr. Mayne''s argument rests on the erroneous assumption that the application for leave to appeal to Her Majesty in Council by the second and third Defendants operated as a stay of execution against the other Defendants, and required to be got rid of to make the appeal decree complete or operative. In fact, he treats the application for leave as equivalent to an appeal.

This decision would appear practically to conclude the matter against the Respondents. We must accordingly hold that the order, dated 18th December 1936, passed on the application for leave to appeal to the Privy Council, does not furnish a starting point for limitation either under Article 182(2) of the Limitation Act or Section 48 of the Code of Civil Procedure.

The Respondents, however, sought to support the judgment on the ground that, as the decree by the High Court, Exhibit D-2, did not itself determine the amount payable for costs but directed that it should be ascertained by the Courts below, there would be no executable decree until it was ascertained and that, accordingly, the period of 12 years u/s 48 of the CPC would run only from 6th January 1938, and the execution petition would, therefore, be in time. Reliance was placed in support of this argument on the decision of the Privy Council in Rameshvar Singh v. Homeshvar Singh (1921) 40 M.L.J. 1 (P.C.). There the decree contained a direction that the amount payable thereunder should be realised by the sale of the properties of one Janeshvar in tbe possession of Ekradeshvar. The decree was dated 27th July 1906. Ekradeshvar got possession of the properties of Janeshvar only in 1914. The decree-holder then applied to execute the decree in December of the same year. An objection was taken that it was barred under Article 182 of the Limitation Act. In overruling this contention, the Privy Council observed:

They are of opinion that, in order to make the provision of the Limitation Act apply, the decree sought to be enforced must have been in such a form as to render it capable in the circumstances of being enforced. A decree so limited in its scope as that of the 27th July 1906, under consideration cannot, in their opinion, be regarded as being thus capable of execution.

It will be noticed that, in this case, the decree which was sought to be executed was in its entirety executable only on the happening of a contingency. But a decree may be executable in part immediately and as to the rest, on the happening of a contingency. The question is whether in such a case the period of twelve years u/s 48 of the CPC should be calculated from the date of the decree or from the date of the happening of the contingency.

This point arose for consideration in connexion with the execution of mortgage decrees passed prior to the present Code of Civil Procedure, which used to provide that the amount declared due should be realised by the sale of the hypotheca and, in case the sale-proceeds were not sufficient to satisfy the claim, the mortgagor should be personally liable for the deficiency. In Aiyasamier v. Venkatachela Mudali ILR (1917) Mad. 989 (F.B.) it was held by a Full Bench of this Court that limitation for execution of personal decrees ran u/s 48 of the CPC from the date when the deficiency was ascertained and not from the date of the decree. The question came up for consideration subsequently before the Privy Council in Khulna Loan Co. v. Jnanendra Nath Bose (1917) 22 C.W.N. 145 (P.C.). There a combined mortgage decree had been passed on 28th of May 1896. The properties were sold on 24th June 1907 and after appropriating the sale-proceeds towards the decree there was a balance still payable. An execution application for recovery of this balance was filed on 6th March 1911. The High Court of Calcutta held that, having regard to Order XX, Rule 7, the date of the decree must be 28th May 1896 and that the period of twelve years u/s 48 of the CPC must be computed from that date. This decision was affirmed on appeal by the Privy Council. Following this decision, it was held in Nawab Shuja Ul-mulk Bahadur v. Umir Ul-umra Bahadur ILR (1925) Mad. 846 and Swaminatha Odayar v. Thiagarajaswami Odayar I.L.R (1927) Mad. 5 that the decision in Aiyasamier v. Venkatachela Mudali ILR (1917) Mad. 989 (F.B.) could no longer be regarded as good law and that, when the decree was executable in part, the whole of it would become barred after twelve years from the date of the decree. That is also the view taken in Rajam Naidu and Another Vs. Meenakshi Ammal and Others, , 217, 218. The Bombay High Court has also come to the same conclusion in Rango Ramacharya Katti Vs. Gopal Narayan Kulkarni, .

The result of the authorities may accordingly be summed up thus: (i) Where the execution of the decree in its entirety is contingent on the happening of an event, the period of limitation does not begin to run until that contingency happens; (ii) where the decree is in part executable immediately, and in part not, limitation as against both the parts would run from the date of the decree.

In the light of these principles, can it be contended that the decree of the High Court in Second Appeal No. 1595 of 1926, Exhibit D-2, is a contingent decree of the character considered in Rameshvar Singh v. Homeshvar Singh (1921) 40 M.L.J. 1 (P.C.)?

Admittedly one portion of it, so far as it related to the costs in the High Court, was executable forthwith and even if the decree could be said to be contingent as to the rest, the matter will be governed by the decision in Khulna Loan Co. v. Jnanendra Nath Bose (1917) 22 C.W.N. 145 (P.C.) and not Rameshvar Singh v. Homeshvar Singh (1921) 40 M.L.J. 1 (P.C.). Even with reference to the costs of the Courts below which had to be ascertained, can it properly be stated that the decree is contingent? When a judgment is pronounced awarding costs it must necessarily take sometime before costs are taxed and entered in the decree. If the contention of the Respondents is to be accepted, the period of limitation for execution of a decree for costs should run not from the date of judgment but from the date when the decree is in fact signed, after the ascertainment of costs. That clearly is not the correct position. Order XX, Rule 7, of the CPC enacts:

the decree shall bear date the day on which the judgment was pronounced, and when the judge has satisfied himself that the decree has been drawn in accordance with the judgment, he shall sign the decree.

Having regard to this rule, it has been held that limitation runs from the date of the judgment which is the date which the decree should bear and not later when the decree is actually prepared and signed. In Afzul Hussain v. Mussummat Umda Bibi (1895) 1 C.W.N. 93 the judgment was pronounced on 5th August 1890. The decree bore the same date but it also bore another date, 11th August 1890, the date on which the decree was actually prepared and signed by the judge. It was held that an application presented for execution more than three years from the date of the judgment but within three years of the signing of the decree was barred by limitation. In Narasingrao Konher Inamdar v. Bando Krishna ILR (1918) 42 Bom. 309 an award directed, among other things, that the Defendant should pay to the Plaintiff forthwith two sums of money and further amounts were to be paid in future. A decree was passed on 17th November 1897, accepting the award. The decree, however, did not embody the terms of the award with the result that the Plaintiff was unable to execute the same. He then applied to amend the decree so as to bring it in conformity with, the award. That was ordered and the decree was amended on 28th January 1899. On 2nd December 1909, the Plaintiff applied to execute the decree in respect of the two amounts which became payable on 17th November 1897. The Defendant pleaded that the execution petition was barred u/s 48 of the Code of Civil Procedure. The Plaintiff contended that, as the decree, dated 17th November 1897, was not executable, and that it became executable only on 28th January 1899, the execution application was in time. In overruling this contention, the Court observed:

I cannot myself doubt that the correct starting point is the 17th November 1897. The decree was made under the old code of 1882 of which Section 205 enacted that ''the decree shall bear date, the date on which the judgment was pronounced.'' That language seems to me to be imperative, and indeed to be designed to meet precisely a case of this sort where owing to certain oversights or irregularities a delay has intervened between the delivery of the judgment and the formal drawing of a correct decree. But if I am right in thinking that the decree is to be referred to the 17th November 1897, and not the 28th January 1899, then admittedly the application is out of time in regard to the sums I have specified. In my opinion the recovery of these two sums is now barred by limitation.

In Ramachandra Deo v. Bhalu Patnaik ILR [1950] Cut 253 (F.B.) it was held by a Full Bench of the Orissa High Court that the phrase "date of the decree" in Article 182 should be construed with reference to Order XX, Rule 7, of the Code of Civil Procedure, as the date when the judgment is pronounced and not the date when the decree is actually drawn up and signed and, that the application for execution filed more than three years from the date of the judgment but within three years from the date of the signing of the decree would be barred by limitation.

In Venkataraya Goundan v. Mallappa Goundan (1946) I M.L.J. 163 a decree for partition was passed on 23rd December 1925. The decree was engrossed with the necessary stamps on 26th March 1942 and an application for execution thereof was filed on 26th June 1942. It was contended on behalf of the decree-holder that the execution was not barred u/s 48 as there was an executable decree only on 26th March 1942. Horwill and Koman JJ. rejected this contention and held that,

...the adjudication became ripe for execution on the date of the judgment, in that the respective rights of the parties had been adjudicated and decided on. It was only the formalities to be observed in drafting the decree that had to be yet carried out.

These observations aptly apply to the present case. In view of these authorities it is difficult to hold that a decree for payment of costs to be taxed, is a contingent decree falling within the scope of the decision in Rameshvar Singh v. Homeshvar Singh (1921) 40 M.L.J. 1 (P.C.).

Counsel for the Respondents relied on the decision of this Court in Vydianatha Aiyor v. Subramania Patter ILR (1913) Mad. 104. There a decree was passed on 30th July 1906 in the following terms:

Appellant (Defendant) do pay Respondent (Plaintiff) Rs. 64-11-4 for his costs in this second appeal, Rs. 78-3-7 for his costs in the memorandum of objections and also his coats in the lower appellate Court which will be ascertained and taxed by that court.

The costs in the lower Court were ascertained on 1st December 1906. The decree-holder applied to execute the entire decree on 7th August 1909, more than three years from the date of the decree and within three years of the ascertainment of costs. A contention was raised that it was barred under Article 182 of the Limitation Act. It was held by Benson and Sundara Aiyar, JJ. that, under that article there was a single starting point for limitation, that the decree must be treated as one and indivisible and that as the execution was within time as regards costs which had been ascertained on 1st December 1906, the application was in time in respect of the entire decree. The proposition laid down in this case that there was only one starting point for limitation under Article 182 of the Limitation Act is in accordance with the decision of the Privy Council in Khulna Loan Co. v. Jnanendra Nath Bose (1917) 22 C.W.N. 145 (P.C.). But the decision as to when that period was to start was based on the concession of the Counsel that,

...so far as it related to the costs of the lower appellate court, the execution was not barred as the decree with respect to that portion became complete only within three years of the date of the application.

It is not, therefore, a decision that, when costs have to be ascertained, limitation runs from the date of ascertainment. The same Bench, after referring to this decision, stated its effect thus:

The question was when limitation began to run for the execution of the decree. It was held that the decree was complete only when the costs were ascertained,

Vide Ramana v. Babu ILR (1914) Mad. 186, 197. These observations do not carry the matter any further. In view of the authorities already cited, we are of opinion that, when there is a decree for payment of costs, limitation runs for execution thereof u/s 48 of the CPC and under Article 182(2) of the Limitation Act from the date of the decree and not from the time when the costs ate actually ascertained.

In this view it is unnecessary to consider whether the principle of the decision in Dakshinamurthi Pillai Vs. Vedamurthy Mudaliar and Others, can be extended to the present case. It was argued for the Respondents that when there is a decree for payment of mesne profits to be ascertained later, the relief that could be obtained in execution of that decree is only the ascertainment of the amount of the mesne profits; but that, when a decree directs payment of costs to be ascertained, there can be no question of obtaining relief by way of ascertainment of costs in execution of that decree and that, therefore, decrees providing for ascertainment of mesne profits stand on a different footing from decrees for costs to be ascertained. This argument is not without force but in the view taken by us on the other questions, there is no need to express any opinion on it. In the result, this appeal is allowed and Execution Petition No. 103 of 1944 will stand dismissed. The parties will bear their own costs throughout.