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PETITIONER: BHAWANIPORE BANKING CORPORA-TION, LTD.

       Vs.

RESPONDENT: GOURI SHANKAR SHARMA

DATE OF JUDGMENT: 14/03/1950

BENCH: FAZAL ALI, SAIYID BENCH: FAZAL ALI, SAIYID KANIA, HIRALAL J. (CJ) SASTRI, M. PATANJALI MAHAJAN, MEHR CHAND DAS, SUDHI RANJAN

CITATION:  1950 AIR    6            1950 SCR   25  CITATOR INFO :  R          1974 SC 968  (9,44,49)

ACT:     Limitation  Act  (IX of .1908), .Art. 182,  cls.  2  and 3’Execution  of decree--Limitation--Starting point--’  Where there  has been a review ", meaning of--Application for  re- opening  decree under s. 86, Bengal Money-lenders  Act  dis- missed  for  default and appeal from  order  of  dismissal-- Whether give fresh starting for limitation for execution  of decree--Interpretation of Art. 189, cls. 2 and 3.

HEADNOTE:   A preliminary decree on a mortgage was passed ex parte  on the 21st August, 1940. The judgments debtor made an applica- tion  under  s. 36 of the Bengal Money-lenders Act  for  re- opening the 26 decree  and  the application wins dismissed for  default  of appearance  on the 20th December, 1941, and  an  application under O. IX, r. 9 C.P.C. for restoration of this application was also dismissed on the 1st June, 1942.  In the  meanwhile on the 22nd December, 1941, a final decree was passed.   The judgment-debtor preferred an appeal from the order  dismiss- ing  his  application under O. IX, r. 9,  C.P.C.,  and  this appeal  was dismissed for non-prosecution on the  3rd  July, 1944.  On the 9th April, 1945, the decree holder applied for execution of the decree:    Held that, even assuming that the word "review" has  been Used  in Art. 182 of the Indian Limitation Act, 1908,  in  a wide  sense  and  that the application under s.  36  of  the Bengal Money lenders Act was an application for review,  cl. 3 of Art. 182 was not applicable to the case inasmuch as the application  under. s. 36 having been dismissed for  default the court had no occasion to apply its mind to the  question whether the decree could or should be re-opened and it could not. therefore be said that "there has been a review" of the decree within the meaning of the said clause.Held also, that the  words "where there has been an appeal " in cl.2 of  Art 182  must  be read with the words "for  the execution  of  a

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decree  or order" in the 1st column of the Article  and  the fact that there was an appeal from the order dismissing  the application  under O. IX, r. 9, made in connection with  the proceeding  under  s.  36 of Money-lenders  Act,  could  not therefore  give  fresh starting point for  limitation  under Art. 182, cl. 2,.

JUDGMENT:         Appeal from the High Court of Judicature at  Calcut- ta: Civil Appeal No. LI of 1949.      Manohar Lal, (H.K. Mitter with him), for the appellant. B.C. Mitter, for the respondent.      1950.  March 14.  The judgment of the Court was  deliv- ered by      FAZL  ALI J.---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 Section  110 of the Civil Procedure Code, appealed  to  this Court.      The  facts  may be briefly stated as follows.   On  the 21st August, 1940, a preliminary mortgage decree was 27 passed  ex  parte in a suit instituted by the  appellant  to enforce a mortgage.  On the 19th September, 1940, the  judg- ment-debtor   made an  application under Order IX, rule  13, of  the Civil Procedure Code for setting aside the ex  parte decree,  but this application was rejected on the 7th  June, 1941.  On the 11th July, 1941, the judgment-debtor filed  an application  under  Section a6 of the Bengal  Money  lenders Act, for reopening the preliminary decree, but this applica- tion  was  dismissed for default of appearance on  the  20th December,  1941.   Thereafter, a final mortgage  decree  was passed  in  favour of the appellant, on the  22nd  December. The judgment-debtor then made an application under Order IX, rule  9, of the Civil Procedure Code for the restoration  of the  proceedings under Section 36 of the Money lenders  Act. The  application.  was however dismissed on the 1  st  June, 1942,  both on the ground that no sufficient cause  for  the nonappearance 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 judgment-debtor thereafter preferred an appeal to the High Court at Calcutta from the decision dismissing his application under Order IX, rule 9, but the appeal was dismissed for non-prosecution, on the  3rd July, 1944.  On the 9th April, 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 the 11th  May, 1945.   On the 2nd June, 1945, the present  application  for execution  was  filed,  and the question which  we  have  to decide is whether this application is in time.     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 timebarred, unless,  as has  been contended before us, the case falls  under  either clause 2 or clause 3 of article 182 of the Indian Limitation Act.  ’Under  these clauses, time to  make  the  application begins to run from-- 28

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  "2.  (Where  there has been an appeal) the  date  of  the final  decree or order of the appellate Court, or the  with- drawal of the appeal, or   3. (Where there has been a review of judgment)the date  of the decision passed on the review..." It is contended that the case is covered by clause 3,and the ground  urged  in  support of this contention  is  that  the application  made by the judgment-debtor for  reopening  the preliminary  mortgage decree under Section 36 of the  Money- lenders  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 applica- tion.  In our opinion, there is no substance in this conten- tion.    The  important words in  clause 3 of  article   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  article 182,clause  8, it must be shown firstly that the  court  had undertaken  to review the relevant decree or order and  sec- ondly,  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 article 182 in a large sense and that  the application for reopening the decree under Section 36 of the Bengal Money lenders Act was an application for review,  the appellant cannot succeed, because the court never  undertook or purported to review the decree in question.  What actual- ly  happened was that the application under Section  a6  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 Order IX, rule 9,  of.the Civil Procedure Code for the restoration of the  proceedings under  Section  86 of the Money lenders Act  was  also  dis- missed.  Even if the fact that the judgment-debtor’s  appli- cation under Section 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 ha8 been a review" of the 29 decree.  The proceedings under Order II, rule 9, of the Code of  Civil Procedure are not material to the present  discus- sion,  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 debtor’s  application  under Section 36 for default.     It  was  also suggested by the learned counsel  for  the appellant  that  the  case might be held to  be  covered  by clause  2 of article 182 on the ground that, even though  no appeal  was  preferred from the final 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 Order IX, rule 9,  of  the Civil  Procedure Code, made in connection with the  proceed- ings  under Section 36 of the Moneylenders Act.  This  argu- ment  also is a highly far-fetched one, because the  expres- sion "where there has been an appeal" must be read with  the words  in column 1 of article 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 collater- al proceeding  or which  has  no direct or immediate connec- tion with the decree under execution.     In  our view, this appeal has no substance, and  we  ac-

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cordingly dismiss it with costs.                                           Appeal dismissed. Agent for the appellant: P.K. Chatterji. Agent for the respondent: R.R. Biswas. 30