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1949 DIGILAW 68 (KER)

Padmanabban Nadar Velayudhan Nadar v. Narayanan Nadar Raman Nadar

1949-12-22

K.SANKARAN, P.I.SIMON

body1949
JUDGMENT : K. Sankaran, J. Plaintiff-decree-holder is the appellant. The execution petition filed by him on 13.11.1122 was objected to by the first defendant as being out of time. The executing court overruled that objection and held that there was no bar of limitation for executing the decree. On appeal by the 1st defendant his plea of limitation was upheld by the lower appellate court. Hence this Second Appeal. 2. The trial court's decree in the case was passed on 27.3.1113. That decree was substantially varied and modified in appeal and the appellate court decree was passed on 6.4.1116. It is a simple money decree. The first execution petition filed after the date of the appellate court decree is the execution petition dated 13.11.1122 and prima facie it is beyond the period prescribed under Art. 166 of the Limitation Act (VI of 1100 of Travancore). While the trial court decree was in force, the decree-holder had filed an execution petition on 17.10.'13, which was struck off the file on 7.11.'13 by a ministerial order. Since that execution petition was not judicially disposed of it is contended on behalf of the decree-holder that it must be deemed to be pending and that the present execution petition filed on 13.11.1122 must be deemed to be a revival and continuation of that execution petition. This position cannot be accepted as sound. The pendency of the prior execution petition dated 17.10.'13 could be availed of by the decree-holder only if the decree on the basis of which that execution petition was filed is alive and subsisting and it is the very same decree that is now sought to be executed. But that decree has already been superseded by the appellate court decree passed on 6.11.'14. The execution petition filed on the basis of the trial court's decree ceased to have any operative force with the super session of that decree by the appellate court decree. Subsequent to the decision in the appeal the only executable decree in the case is the final decree passed by the appellate court. This position is well settled and it is immaterial whether the appellate court decree has reversed, modified or simply confirmed the decree of the trial court. Subsequent to the decision in the appeal the only executable decree in the case is the final decree passed by the appellate court. This position is well settled and it is immaterial whether the appellate court decree has reversed, modified or simply confirmed the decree of the trial court. In Shohrat Singh v. Bridgman (I.L.R. 4 Allahabad 376) it was ruled by a Full Bench that the appellate court decree is the final decree and the only decree capable of being executed after it has been passed, whether the same reverses, modifies or confirms the decree of the court from which the appeal was made. To the same effect is the decision in Mahommad Sulaimankhan v. Muhammad Yar Khan (I.L.R. 11 Allahabad 267). There it was laid down that where a decree has been affirmed on appeal, the only decree which can be executed is that of the appellate court and not the superseded decree of the first court, though the latter may, if necessary, be referred to for the purpose of executing the appellate decree. The starting point of limitation prescribed in column 3 of Art. 166 of the Limitation Act also clearly indicates that the only effective and executable decree is the final decree of the appellate court in case there has been an appeal against the trial court's decree. In the third column of that Article it is stated that the period of limitation will begin to run from the date of the decree or order of the appellate court. Thus it is clear that the decree-holder cannot fall back upon the steps taken by him under the superseded decree of the first court and thus escape the bar of limitation which has made the final and effective decree in this case unenforceable through court. It follows therefore that the lower appellate court's finding that the decree-holder's right to execute the decree in this case has become barred by limitation, calls for no interference. 3. In the result this appeal fails and it is accordingly dismissed with costs. Appeal dismissed.