Patna High Court
State Of Bihar vs Sheo Kumar Sinha on 3 January, 1969
Equivalent citations: 1969(17)BLJR299, AIR 1969 PATNA 359, ILR 48 PAT 257, 1969 PATLJR 132, 1969 BLJR 299
JUDGMENT Wasiuddin, J.
1. This appeal is directed against an order passed by the First Additional Subordinate Judge, Arrah dated the 13th August, 1966 in a Miscellaneous case numbered as 3 of 1965 filed by the judgment-debtor respondent under Section 47 of the Code of Civil Procedure. There were two objections raised before the learned Additional Subordinate Judge, one of which was to the effect that the decree was not maintainable in view of its vagueness and the second objection was that the Execution (rase No. 4/26 of 1963/66 pending in the court was barred by limitation. As regards the first point the finding of the learned Additional Subordinate Judge was to the effect that the decree was not executable on account of its vagueness and it could not he executed unless there was an amendment of the decree. With regard to the second objection, the learned additional Subordinate Judge was of opinion that the execution was not barred by limitation. In view of the decision on the first point, he allowed the miscellaneous case and dismissed the execution case as not maintainable in view of the vagueness in the decree.
2. The State of Bihar who was the decree holder in the case being aggrieved and dissatisfied with this order has preferred this present appeal contending that the execution cape should not have been held to be not maintainable or non executable on account of its vagueness. The learned Counsel for the judgment-debtor respondent has contended, on the other hand that the decision of the learned Additional Subordinate Judge in this respect was correct, but it has also been submitted that the learned Additional Subordinate Judge was not correct in his finding that the execution case was not barred by limitation and that he ought to have held that the execution case was also barred by limitation.
3. Sheo Kumar Sinha who is the sole judgment debtor respondent in this appeal filed a title suit in forma pauperis for a declaration that the alienations made by defendant No. 1 of that suit in respect of the joint family property were not binding upon the plaintiff and he was entitled to recover possession thereof. The suit was dismissed with costs and pleader's fee against the contesting defendants, but was decreed without costs against the non-contesting defendants on 24-8-1957. There was also an order to the effect that a copy of the decree be sent to the Collector, Shahabad for realisation of the court-fee from the plaintiff which was payable by him, had he not been allowed to sue as a pauper. A copy of the decree, therefore, was forwarded to the Collector in due course for the realisation of the court-fee from the plaintiff. Admittedly, this decree does not show what amount of court fee was to be realised from the plaintiff. The operative portion of the decree with regard to the realisation of the court-fees by the State Government was as follows:
"Let a copy of the decree be sent to the Collector of Shahabad for realisation of court-fee from the plaintiff which was payable by him, had he not been allowed to sue as a pauper."
4. There was also an extract of the plaint in the certified copy of the decree and there was a recital to the effect that the valuation of the suit was Rs. 1,07,572/-and the court-fee payable on this amount was Rs. 3021/10/-. It may be also mentioned here that as usual there was an account appended to the decree showing the costs of the respective parties incurred in the suit and as regards the item of stamp for plaint, that is, the court-fee on the plaint, it was blank showing that the office had not made any calculation as to what was the actual court-fee payable on the plaint. The State of Bihar filed the execution petition and column No. 7 of the execution petition where the amount of the decree has to be entered was blank, but in column No. 8 where the amount of the costs has to be entered it was noted Rs. 3066/13/- equivalent to Rs. 3066.81 P. I may in this connection refer to the provisions of Order 33, Rule 8, of the Code of Civil Procedure which lays down that when the application for permission to sue in forma pauperis is granted, then the suit shall proceed in all other respects as a suit instituted in the ordinary manner, except that the plaintiff shall not be liable to pay any Court fee (other than fees payable for service of process) in respect of any petition, appointment of a pleader or other proceeding connected with the suit. This means that a calculation has to be made with regard to such court-fee which was payable by the plaintiff on such petitions etc. There was no such calculation in the decree showing as to how much of money was payable in this respect towards such court-fee by the plaintiff.
As stated above, according to the plaint the court-fee payable was only Rs. 3021/-10/-, but according to the execution petition the Court-fee was payable as Rs.3066-8lP. The facts which I have stated above, therefore show that in the first place the operative portion of the decree was silent with regard to the exact and definite amount which the plaintiff was liable to pay as court-fee and there was no calculation at all in the decree. It was therefore, urged on behalf of the judgment-debtor-respondent that the decree was vague and could not be executed. The learned counsel appearing for the State has submitted firstly that the decree was in accordance with Order 33, Rule 11 of the Code of Civil Procedure and secondly that even if the amount was not noted in the decree, it was such which could be ascertained from the record and the relevant papers available therein. Now as regards the first contention I may refer here first of all to the relevant rules under Order 33, Civil Procedure Code. Order 33, Rule 10, Civil Procedure Code lays down as follows:--
"Where the plaintiff succeeds in the suit, the Court shall calculate the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper; such amount shall be recoverable by the State Government from any party ordered by the decree to pay the same, and shall be a first charge on the subject-matter of the suit."
Order 33, Rule 11, Civil Procedure Code lays down as follows:
"Where the plaintiff fails in the suit or is dispaupered, or where the suit is withdrawn or dismissed.
(a) because the summons for the defendant to appear and answer has not been served upon him in consequence of the failure of the plaintiff to pay the court-fees or postal charges (if any) chargeable for such service, or
(b) because the plaintiff does not appear when the suit is called on for hearing;
the court shall order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court-fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper."
It will be noted that in Rule 10 there is a direction that the court shall calculate the amount of court fees which would have been paid by the plaintiff. True it is that there is no such mention about the calculation in Order 33, Rule 11, Civil Procedure Code, because there it is only mentioned that the court shall order any plaintiff or any person as a co-plaintiff to the suit, to pay the court fees which would have been paid by the plaintiff if he had not been permitted to sue as a pauper. In my opinion, Rule 11 has to be read along with the provisions regarding the calculation contained in Rule 10 and it could never have been the intention of the Code that there should be a calculation where a pauper succeeds but no such calculation is to be made where the pauper fails because obviously in both cases the amount which is payable as court fees has to be ascertained with regard to the plaint and then also with regard to such court fees as would be payable under Rule 8 of Order 33, Civil Procedure Code. I am further of opinion, that these two rules should be read along with Rule 14 of Order 33, Civil Procedure Code. Rule 14 lays down as follows:--
"Where an order is made under Rule 10, Rule 11 or Rule 11A, the court shall forthwith cause a copy of the decree or order to be forwarded to the Collector, who may, without prejudice to any other mode of recovery, recover the amount of court fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue."
5. The important words to be noticed in the above rule are that the copy of the decree should contain the amount of court-fees specified therein and this clearly means that the specific amount should be mentioned. As there was no calculation and no amount mentioned in the decree, so there cannot be any doubt on this point that the decree was vague and as such not executable without amendment of the decree.
6. It was also contended before the learned Additional Subordinate Judge that even if the decree was silent as to the amount, this could be calculated and ascertained from the materials available on the record and a petition for amendment of the decree had also been filed in the Executing Court, but I think the petition was quite rightly rejected by the learned Additional Subordinate Judge because this was an amendment of the decree and the executing court could not amend the decree. The proper court to which a petition for amendment of the decree could have been filed was the court which had passed the decree. I am also of opinion, that in the circumstances, it would have been beyond the scope and the power of the executing court to go behind the decree by looking into the relevant papers and materials on record and the calculating as to how much of court fee was payable, This would have tantamounted to the amendment of the decree itself which as pointed above the executing court could not do. The court below, therefore, rightly held that the decree was not executable on account of its vaguenes and it cannot be executed without amendment.
7. The next point which arises for consideration in this appeal is whether the execution petition was barred by limitation. The decree in the suit was passed on 24-8-1957 and the execution petition was filed on 11-12-1963. I may again in this connection refer to the provisions of Rule 14 of Order 33, Civil Procedure Code which lay down that the Collector may without prejudice to any other mode of recovery recover the amount of court fees specified therein from the person or property liable for the payment as if it were an arrear of land revenue. This gives the Collector an option either to proceed under the Public Demands Recovery Act for the realisation or to file an execution petition for the execution of the decree under the ordinary procedure. It appears that the Collector adopted this latter procedure and, therefore, the execution petition in this case was filed on 11-12-1963. Undoubtedly, the execution petition was filed after expiry of three years from the date of the passing of the decree, and, therefore, a very important question arises for consideration whether the execution petition was barred by limitation. I may refer here in this connection to the provisions of Article 182 of the Indian Limitation Act. Under Clause (1) of this article the execution should be within three years of the date of the decree and here in this case as pointed above, the execution petition was filed long after the expiry of the period of three years. The decree-holder appellant contended that Clause (2) of Article 182 would be applicable as an appeal had been preferred by the judgment-debtor respondent. Clause (2) of Article 182 of the old Limitation Act which would be applicable in this case lays down as follows:--
"(Where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal."
In this present case, there is no doubt that a memorandum of appeal had been presented by the judgment-debtor respondent in the High Court, but this memorandum of appeal was rejected on 12-12-1960, If the computation of the period of limitation is from this date then certainly the execution was within time, but if the computation has to be made from the date of the decree, the execution was barred by limitation. It has, therefore, to be seen whether Clause (2) of Article 182 would b" applicable in this case.
Clause (2) of Article 182, which I have referred above, lays down two precedent conditions, one of these is that there has been an appeal and that there was a final decree or order of the appellate Court in that appeal. Then in that case the computation of the period of limitation would be from the date of that final decree or order. The learned Additional Subordinate Judge in his order has relied on some decisions of this Court and in the course of the argument here in this appeal also several, decisions have been relied upon by the parties, but I think to appreciate the correct position in iaw it is necessary to examine as to how the memorandum of appeal was treated and disposed of.
The judgment-debtor respondent after having been unsuccessful in the suit filed by him filed a pauper application in the High Court for permission to file appeal as a pauper and under Rule 1 of Order 44, Civil Procedure Code any person entitled to prefer an appeal, who is unable to pay the fee required for the memorandum of appeal may present an application accompanied by a memorandum of appeal. In this case the pauper application was filed along with the memorandum of appeal on 14-10 1957 in the High Court. This was registered as M. J. C. No. 559 of 1957 and naturally the pauper application had to be disposed of first of all. On a perusal of the record of the case it appears that on 9-7-1960 the M. J. C. No. 559 of 1057 was heard by a Division Bench of this Court The Bench was of opinion that it was not a fit case in which the petitioner should be permitted to sue in forma pauperis and, therefore, the pauper application was dismissed. The Bench was also pleased to order that the petitioner appellant be granted six months' time to pay the proper court fee on the memorandum of First Appeal, failing which the First Appeal shall stand dismissed without further reference to Bench. After this order of the Bench the report of the Stamp Reporter was called for and he after examining the lower court records on 6-10-1960 reported that the court fee of Rs. 2,846.25 P. was payable according to valuation. He also reported that the final report will be made on variation in valuation being explained as required by the proviso to Rule 3(h) of chapter VII of the Patna High Court Rules.
I may refer here in this connection to page 5 of the memorandum of appeal where the valuation of the suit was given as Rs. 107572/, hut the appeal was valued at Rs. 69098/-. There was thus obviously a discrepancy between the two valuations and this required an explanation. On 11-10-1960 as required by the High Court Rules, the stamp report was put up before the Registrar who accepted the report of the Stamp Reporter and ordered that this should be paid within the time allowed by the Bench and he allowed seven days time to explain the variation in the valuation mentioned above. Order No. 3 dated 17-11-1960 shows that there was no compliance, inasmuch as the variation in the valuation had not been explained and, therefore, the Registrar ordered that the matter may be laid before the Bench for order. The Registrar himself could not pass any order about the rejection of the memorandum of the appeal and, therefore, the matter was placed before the Bench. Order No. 4 dated 28-11-1960 shows that the Bench was pleased to allow two weeks' time to explain the variation in valuation failing which the memorandum of appeal shall stand rejected without further reference to a bench. The two weeks' time also expired, but there was no compliance of the order of the Bench and, therefore, a note was recorded by the Deputy Registrar in order-sheet that the variation in valuation not having been explained in due time allowed by the Bench, the memo of appeal stood rejected on 12-12-1960 by virtue of the said order.
These facts clearly show that the appeal had not been dismissed, but there was a rejection of the memorandum of appeal on account of the fact that the variation in valuation had not been explained, that is to say certain defect which had been discovered in the memorandum of appeal was neither removed nor was it explained in spite of sufficient time having been allowed to do the same. It may also be noted that this memorandum of appeal did not bear any court fee stamp. Order 41. Rule 1, Civil Procedure Code lays down that every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. It further lays down that the memorandum shall be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is Founded. Rule 2 of Order 41, Civil Procedure Code lays down as to what should be the contents of the memorandum of appeal. Rule 3 of Order 41, Civil Procedure Code lays down that if the memorandum of appeal Is not drawn up in the manner hereinbefore prescribed, it may be rejected, or it may be returned to the appellant for the purpose of being amended within a time to be fixed by the court or be amended then and there and Sub-rule (2) lays down that where the Court rejects any memorandum, it shall record the reasons for such rejection. Order 41, Rule 1. Civil Procedure Code, therefore, prescribes the form of appeal and also lays down the mode of preferring an appeal, but the presentation of any and every thing containing a relief by way of appeal will not amount to an appeal. The memorandum of appeal should also be properly stamped as required by Section 4 of the Court-Fees Act.
Rule 9 of Order 41, Civil Procedure Code deals with the procedure on admission of appeal and it lays down that where a memorandum of appeal is admitted the Appellate Court or the proper officer of that Court shall endorse thereon the date of presentation and shall register the appeal in a book to be kept for the purpose and that such book shall be called the Register of Appeals. There is no mention of the words "memorandum of appeal" in the rules after Rule 9 of Order 41 and the subsequent rules speak of appeal and dismissal of appeal. The Code, therefore, draws a distinction between "a memorandum of appeal" and "an appeal" and if there is a rejection before the admission of the appeal, then it will be a rejection of memorandum of appeal and not a dismissal of the appeal. This distinction also seems to be present in Section 4 of Court-Fees Act read with Schedule I. item 1 of that Act. Rule 11 of Order 41 Civil Procedure Code speaks about the power to dismiss appeal without sending notice to Lower Court. Sub-rule (2) deals with the power to dismiss the appeal if nobody turns up on the date fixed for hearing and it is also important to note that Sub-rule (3) of Rule 11 of Order 41, Civil Procedure Code, lays down that the dismissal of an appeal under this rule shall be notified to the court from whose decree the appeal is preferred. There is no such provision with regard to the rejection of a memorandum of appeal. Rule 17 deals with the dismissal of appeal for appellant's default and Rule 18 deals with dismissal of appeal where notices not served in consequence of appellant's failure to deposit costs. As already pointed above in this case by the order of the Bench there was the rejection of the memorandum of appeal and not the dismissal of the appeal. Therefore, in my opinion, this cannot be a case which will come within the purview of Clause (2) of Article 182 of the Indian Limitation Act providing for the extension of the period of limitation in a case where there has been an appeal. The words "there has been an appeal" would apply to a case when the memorandum of appeal has been accepted and the appeal has been admitted.
I may in this connection refer to a decision of the Calcutta High Court in the case of Prodyot Coomar Tagore v. Mathura Kanta Das, AIR 1938 Cal 533 where it was held that where a memorandum of appeal though presented to the Appellate Court is neither registered nor numbered as an appeal on account of the deficit court-fee and on non-payment of the requisite court fees within the time allowed the memorandum of appeal is rejected, then this order has not the effect of a decree and it does not deal judicially with the appeal at all which has not vet come into existence. It was further held that it amounts merely to this that the appellant has not complied with the conditions under which alone he is competent to file an appeal and, therefore, the position is exactly the same as if no appeal has been filed and as such the order did not give any fresh start for limitation. A similar question also arose for consideration in the Allahabad High Court in the case of Harihar Prasad Singh v. Benj Chand, AIR 1951 All 79 (FB) where a question was formulated and referred to the Full Bench of the Allahabad High Court. The question which was referred was to the effect as follows:--
"Whether a memorandum of appeal, which is found to be defective for want of proper court fee and is, therefore, not admitted in view of Section 4, Court fees Act, and it is ultimately rejected on that ground, can be treated as an appeal when the Court has refused to admit or register it as an appeal."
Several reported decisions were considered by the Full Bench of the Allahabad High Court and there also a line of distinction was drawn between a memorandum of appeal and an appeal. The Full Bench decision was to the effect that a memorandum of appeal which is found to be defective for want of proper Court fee and is not admitted in view of Section 4 of the Court fees Act and is returned or even rejected on that ground cannot be treated as an appeal, when the Court has refused to admit or register it as an appeal, and that in such a case it must be held that there has been no appeal from the decree sought to he executed within the meaning of Clause (2) of Article 182 of the Indian Limitation Act. I may refer here to the observations of Agarwala, J. in the aforesaid decision at page 86:
"The phrase 'where there has been an appeal' to my mind necessarily implies that the Court has received the memorandum of appeal. The Court does not receive it because it is not empowered to do so so long as the document is insufficiently stamped and the deficiency has been brought to the notice of the Court."
Where, therefore, a document is not received by the Court either initially or subsequently when, after time having been granted, the deficiency in court-fee is not made good and the document is re-turned, there has been no appeal and there has been no final order upon such an appeal."
He also in his observations pointed out that there is a clear distinction between a case in which a memorandum of appeal has been returned before it is admitted or registered and in a case in which the memorandum of appeal though insufficiently stamped has been by mistake or by inadvertence registered and admitted and then rejected under Section 28 of the Court-Fees Act. It was also pointed out that in the latter case it can be said that there has been an appeal with a final order, but in the former case, that is to say, where there is a rejection under Section 4 of the Court-fees Act read with Order 41, Rule 9 of the Code of Civil Procedure, then there has been neither an appeal nor a final order thereupon.
8. In the present case, as pointed above by me the memorandum of appeal did not bear any stamp at all and for this the Bench had allowed time of six months, but before the expiry of this period a defect had been discovered which needed explanation regarding the valuation and for the non-compliance of that order and failure to explain and remove the defect, the memorandum of appeal was rejected. I think that such a rejection would be on par with the rejection of a memorandum of appeal under Section 4 of the Court-fees Act and, therefore, I think the two decisions which I have referred above would be applicable to this case The learned Additional Subordinate Judge relying on AIR 1941 Pat 213, Mohammad Naqir v. Alauddin Ahmad held that the application was not barred by limitation and he has in his judgment referred to some other decisions also. The learned counsel of both the parties in the course of the argument have also referred to some other decisions of this Court as well as of the decisions of the Judicial Committee of the Privy Council. I would now proceed to examine those decisions which have been referred to above by the learned Additional Subordinate Judge and by the learned Counsel.
In the case of Nagendra Nath De v. Suresh Chandra De, ILR 60 Cal 1: (AIR 1932 PC 165) it was held by the Privy Council that any application by a party to an appellate Court to set aside or revise a decree or order of a Court subordinate thereto is an "appeal" within the meaning of the above provision, even though it is; (a) irregular or incompetent, or (b) the persons affected by the application to execute were not parties, or (c) it did not imperil the whole decree or order. A perusal of the Judgment shows vide p. 4 of the report (ILR Cal) = (at p. 166 of AIR) that in that case appeal, though irregular in form as not being an appeal against the decree of the Subordinate Judge and being insufficiently stamped for this purpose, was admitted and heard in due course by the Bench of the Calcutta High Court and then the objection was taken to the form of the appeal; the appeal was dismissed, both on the ground of irregularity and upon the merits, and the dismissal was embodied in a decree of the High Court, There the question arose whether the limitation for the execution of the decree would run from this final order or from the date on which the decree in the suit by the appellate Court was passed. I think the very fact that the appeal was admitted and heard on merits and then disposed of distinguishes this case from the present case, and it will not be applicable.
Two more decisions of the Judicial Committee of the Privy Council in the case of Chandri Abdul Majid v. Jawahir Lal, AIR 1914 PC 66 and in the case of Batuk Nath v. Mt. Munni Dei, AIR 1914 PC 65 were also referred to in the course of the argument. These two decisions of the Judicial Committee of the Privy Council were considered in a decision of our own High Court in the case of Raghu Prasad Singh v. Jadunandan Prasad, AIR 1921 Pat 6. Sir Dawson-Miller C. J. who delivered the judgment in the aforesaid case distinguished the two rulings of the Judicial Committee of the Privy Council and it was held in AIR 1921 Pat 6 that an order dismissing an appeal for non-payment of printing costs is a final order within Article 182. It was further held that where there has been an appeal and where that appeal has been properly presented and is within time any order of the High Court dismissing the appeal or putting an end to the appeal in any way is either a decree or order within the meaning of Clause (2) of Article 182 of the Limitation Act, although it may be that in many cases such an order is not an order of which execution could be sought. It appears from the facts of that CE se that the appellants in that appeal failed to pay the printing costs although several extensions of time were granted for the purpose and then the matter was finally placed before a Division Bench of the Court and the appeal was dismissed for want of prosecution. As the dismissal was for failure to pay the printing costs, then this obviously implies that the appeal had been admitted because the printing costs which must have been for the preparation of the paper book could have been only asked for after the admission of the appeal. The appeal was, therefore, treated and dealt with as required by Order 41, Rule 9, Civil Procedure Code referred to above, and that is why the order in the case by the Bench was that the appeal was dismissed for non-prosecution. I think in this view of the matter, there had been an appeal as contemplated by Article 182 of the Limitation Act and there was also a final order in the same, but this case again is distinguishable from the present case for the reasons already mentioned above.
9. The next case which has been referred to and relied upon is the case of Kameshwar Singh Bahadur v. Beni Madho Singh, AIR 1931 Pat 422. In this case the appeal had been filed in the court of the District Judge on 31-8-1921 and it was admitted on 4-11-1921. It remained pending till 14-5-1923 and in the meantime the appellant died and there was a substitution in her place and then finally the appeal was dismissed on 14-5-1923 on the ground that it was barred by limitation. The original decree in this appeal against which this appeal had been preferred was passed on 27-6-1921. The application for execution was filed on 12-5-1926 and there a question arose whether in view of Clause (2) of Article 182 of the Limitation Act time would run from 27-6-1921 which was the date of the decree or from 14-5-1923, that is the date of the order of the dismissal of the appeal. This case is also again distinguishable from the present case because as stated above, the appeal had been admitted. It was held in that case that if the provisions of Order 41, Rule 1, Civil Procedure Code are complied with and a memorandum of appeal is presented to the Court, such a presentation of a memorandum of appeal is preferring an appeal, and if the provisions of Order 41, Rule 1 are complied with then the appellate Court is bound to receive the memorandum and the question as to whether the appeal is barred by limitation or not is a question which has to be decided by the Court to which the appeal is preferred and when that question is decided and it is found that the appeal is barred by limitation, and then an order will be made or a decree will be passed dismissing the appeal and such an order or decree will come within the operation of Article 182, Clause (2) and a fresh period of limitation will begin to run from that date of such order or decree. There is no doubt that there was a presentation of a memorandum of appeal, but as pointed above, the appeal was admitted and then after hearing, the appeal was dismissed as being barred by limitation. In view of these facts, this ruling will also not apply to the facts of the present case.
The learned Counsel for the respondent has relied on the decision in the case of Hirday Narayan Singh v. Maheshwari Prasad Singh, AIR 1932 Pat 251. In that case there was an appeal to the High Court and that appeal was dismissed for non-prosecution and relying on the decision in the case of AIR 1914 PC 66, it was held that the order dismissing the appeal for want of prosecution does not deal judicially with the matter of the suit and can in no sense be regarded as an order adopting or confirming the decision appealed from and the appellant is in the same position as if he has not appealed at all.
There is another decision in the case of Mohammad Naqir v. Alauddin Ahmad, of our own High Court, reported in AIR 1941 Pat 213. In that case there was an appeal to the District Judge which was dismissed on 22-12-1934 and then a second appeal to the High Court was filed which was dismissed on 19-9-1935 as talbana was not filed within the time prescribed. After this a miscellaneous judicial case was filed for the restoration of the appeal and this was also dismissed on 16-1-1936. The petition for the execution of that decree was filed on 11-1-1939. The respondents filed an execution petition for the realisation of the costs awarded in the suit itself, in the first appeal, in the second appeal and then in the miscellaneous judicial case, and a question, therefore, arose for consideration as to whether the time will run from 19-9-1935, that is, the date of the order of the dismissal of the second appeal or from 16--1-1936, that is the date of the dismissal of the miscellaneous judicial case. In my opinion, this case is also clearly distinguishable from the present case because the dismissal of the second appeal was for the non-payment of talbana. This would obviously imply that the appeal had been admitted because the question of filing the talbana can only arise after the admission of the appeal.
I may refer here to R. 18 of Order 41, Civil Procedure Code which provides for dismissal of appeal where notice was not served in consequence of appellant's failure to deposit costs. In that case two questions arose for consideration, one of these was also an interpretation of Clause (3) of Article 182 of the Limitation Act, but that question need not detain us here because this does not arise in the present case. In the judgment of Mr. Rowland, J. there are observations to the effect relying on the decision reported in AIR 1931 Pat 422 referred to above that Clause (2) of Article 182 of the Limitation Act, is not limited to an appeal which was a competent appeal; and that the article applies whenever an appeal has been preferred; and that presentation of a memorandum of appeal is preferring an appeal. In my opinion the presentation of a memorandum of appeal would no doubt be preferring an appeal, but it would not mean that there has been an appeal as contemplated by Clause (2) of Article 182 of the Limitation Act because the words "there has been an appeal" imply that the presentation has passed from the first stage to the second stage, that is to say the memorandum of appeal is now being treated as an appeal and this can be only when it is free from all defects and properly stamped and admitted. I think, for all these reasons also this present rase is distinguishable and the ruling reported in AIR 1941 Pat 213 will also not apply to the present case.
10. On a consideration of the entire matter, and the decisions referred and discussed above, in my opinion, in a case like the present one there was a rejection of the memorandum of appeal and, therefore, it cannot be said that there has been an appeal as contemplated by Clause (2) of Article 182 of the Indian Limitation Act, and no doubt, that there was an order and it was a final order as far as that memorandum of appeal is concerned, but that cannot be treated as an order in the appeal and it was only for the purposes of disposing of the memorandum of appeal as distinguishable from an appeal in this view of the matter, the learned Additional Subordinate Judge was not correct in his view in holding that the present execution was not barred by limitation. I, therefore, hold that the execution was barred by limitation and it will not be saved by the saving Clause (2) of the Article 182 of the Indian Limitation Act.
11. Both these points are, therefore, decided against the appellant and, therefore, the appeal fails and it is hereby dismissed, but since the decision has been on a question of law only, so no order for costs is made.
A.B.N. Sinha, J.
12. I agree.