Govindan v. Damodaran — 1951 DIGILAW 52 (KER)

Judgment :- This appeal arises out of proceedings in execution of the decree in O.S. No. 54 of 1102 on the file of the Quilon District Court. The appellant before this court is the assignee-decree-holder. The question for decision in the appeal is one of limitation. The trial court's decree which was passed on 5.7.1107 set aside as many as six different alienations made at different times by two successive karnavans of a marumakkathayam tarwad and it allowed the plaintiffs, three junior members, to recover possession of the concerned properties on behalf of the tarwad. Each alienee was in separate possession of the item or items alienated to him and the decree passed was one severally as against all the defendants individually and in no sense against them jointly, and it specifically stated the properties of which each of them was severally and separately in possession as also the mesne profits each of them was to pay to the plaintiffs. Defendant 10, whose was the main opposition to the execution application giving rise to this appeal, was the purchaser of items 3 to 5 in the plaint schedule and the decree allowed the plaintiffs to recover a one-half share of those items together with the mesne profits due in respect of that share. The only person to prefer an appeal against the decree passed in the suit was defendant 5, an alienee of some other items. His appeal which was filed as A.S. No. 222 of 1108 before the Travancore High Court was confined to the properties he was interested in and the plaintiffs alone were made respondents to it. The appeal was successful and the High Court passed its decision on 26.10.1116 upholding the validity of the alienation in favour of Defendant 5. The present appellant had in the meanwhile obtained an assignment of the plaintiff's rights in the decree and on 10.1.1122, well within six years of the High Court's decision in A.S. 222 of 1108, but more than 14 years after the trial court's decree, filed execution petition out of which this appeal has arisen. This was the first and so far, the only application filed in the case to execute the decree passed in favour of the plaintiffs Defendant 10 opposed it as time-barred and the learned District Judge upheld the objection. Hence this appeal. 2. This was the first and so far, the only application filed in the case to execute the decree passed in favour of the plaintiffs Defendant 10 opposed it as time-barred and the learned District Judge upheld the objection. Hence this appeal. 2. The period of limitation within which an execution application has to be filed is prescribed by Art. 166 of Schedule 1 of the Travancore Limitation Act (corresponding to Art.182, Indian Limitation Act) and S. 41 of the Code of Civil Procedure, Travancore (S. 48 of the Indian Code) fixes an outside period after which execution of a decree, though not barred by the Limitation Act, may not be granted. Art.166 provides a period of six years or three years according as the decree is registered or not from the different starting points mentioned in Cls.1 to 7 of Column 3 thereof. The present decree comes under the category of registered decrees and hence an application filed within six years of the starting point will be well within time. A reference to the various clauses in column 3 would show that Cls. 3 to 7 have no application or relevance to the present case. So far we are on agreed grounds and the controversy in the case is whether Cl. (1) or Cl. (2) applies. The words used in Cl. (1), so far material, are 'date of the decree ' and the relevant words in Cl. (2) are '(where there has been an appeal) the date of the final decree ' The six years had expired or had not expired according as computation fell to be made, as the appellant urged, from the date of the decree of the High Court, or, as the respondent urged, from the date of the original decree. 3. It admits of no doubt that the decree under execution is one passed severally against the various alienees. It was not contended to be otherwise either here or in the court below. It is equally clear that the scope of the appeal in A.S. No. 222 of 1108 was limited to the validity of the alienation made in favour of defendant 5. Defendant 10 or any other defendant sought to be affected by the present execution was not a party to the appeal either as appellant or respondent. It is equally clear that the scope of the appeal in A.S. No. 222 of 1108 was limited to the validity of the alienation made in favour of defendant 5. Defendant 10 or any other defendant sought to be affected by the present execution was not a party to the appeal either as appellant or respondent. On these grounds it was contended on behalf of the 10th defendant respondent (here in after referred to as the respondent) that the applicatory clause is C1.1 and not C1.2. The argument was Cl. 2 applies only to a case where the whole decree is imperilled in the appeal or where the party sought to be affected by the execution was also a party to the appeal. A further refinement to the argument was, though not in form in substance the decree passed by the trial court consisted of as many as six independent decrees and that the appeal in A.S. 222 of 1108 was only from one of such decrees viz., that passed against defendant 5. Though the words in C1.2 appear to be sufficiently clear, the question as to its interpretation is one which has given rise to a considerable conflict of authorities. One school of thought is that the words should be understood or interpreted in their plain grammatical meaning without any exceptions or qualifications added to them. The other school is the scope of the appeal or how far it could have affected the rights of the parties to the suit and its constitution should be taken into account in deciding whether Cl. 2 applies to a given case or C1.1 should govern it. Among the older High Courts in India controversy started soon after the Article itself was enacted. For our present purpose it is unnecessary to go into the sharp conflict of judicial opinion on the point as now the conflict has been set at rest by a pronouncement of the Privy Council in Nagendra Nath v. Suresh - AIR 1932 PC 165 to the effect that there is no warrant for reading into the words "where there has been an appeal" any qualification either as to the character of the appeal or as to the parties to it. Their Lordships said the words mean just what they say. Their Lordships said the words mean just what they say. Even before the Judicial Committee gave the above decision the preponderance of judicial opinion among the Indian High Courts was in favour of giving these words their plain grammatical meaning. 4. The case in 1932 P.C.165 arose under the following circumstances: A receiver appointed in a suit for partition among the members of a Hindu family in Bengal raised a loan from some of the co-sharers themselves and executed a mortgage with respect to it. After the allotment of the shares to the several co-sharers was effected and the receiver discharged, two co-sharers, Madan Mohan and his son instituted a suit to enforce the mortgage and in it Madan Mohan claimed that the shares of two other co-sharers (appellants before the Board) had been assigned to him. His claim was upheld by the Subordinate Judge who tried the suit and the preliminary mortgage decree passed was on that basis. An appeal was preferred against the preliminary decree and the parties effected a compromise whereby the alleged assignment of the shares of the two co-sharers was disregarded and the preliminary decree the High Court passed in the appeal in supercession of the one passed by the Subordinate Judge recognised the appellants before the Board as mortgagee-creditors. In that preliminary decree the co-sharers were ranged into two groups, one of decree-holders consisting of six sets of co-sharers and the other of judgment-debtors consisting of eight sets of co-sharers. The decree would seem also to have defined the rights and liabilities of each of these sets as to the amounts each set was entitled to receive or liable to pay. 5. Madan Mohan again tried to reassert his former claim more than once and finally repeated it in the proceeding to pass the final decree. While passing the final decree the Subordinate Judge again negatived his claim and he preferred what he called an appeal to the High Court against the decision upholding the rights of the appellants before the Board. There was no appeal against the final decree as such or any portion thereof. As such the appeal was considered irregular nor was proper courtfee paid on it. The appeal only raised the question of the correctness of the decision regarding the assignment and the only respondents to the appeal were the other decree-holders and not the judgment-debtors. There was no appeal against the final decree as such or any portion thereof. As such the appeal was considered irregular nor was proper courtfee paid on it. The appeal only raised the question of the correctness of the decision regarding the assignment and the only respondents to the appeal were the other decree-holders and not the judgment-debtors. The appeal was ultimately dismissed both on the ground of irregularity and upon the merits and the dismissal was embodied in a decree. 6. The execution petition giving rise to the appeal before the Board was filed by the appellants before the Board within three years of the appellate decision but beyond three years of the final decree passed by the Subordinate Judge. The question arose whether the execution was within time. The Subordinate Judge decided in favour of the decree-holders but that decision was reversed by the High Court. On appeal to the Judicial Committee their Lordships restored the decision of the Subordinate Judge. Of the three grounds upon which the High Court's decision was sought to be supported grounds Nos. 2 and 3 are relevant here and those grounds as set out in their Lordships' judgment read; "(2) that an appeal in order to save limitation under C1.2 of the Art.(182) must be one to which the persons affected, ie., in the present case the judgment-debtors were parties; and (3) that it must also be one in which the whole decree was imperilled". In giving their decision on the above contentions their Lordships said as follows: "The second and third contentions have been the subject of much difference of opinion in India. In Mashiatunnissa v. Rani (1890) 13 All.1 three of the judges in the Full Court took one view, and two the other. In Gopal Chunder Manna v. Gosain Das Kalay (1898) 25 Cal. 594 a Calcutta Full Bench followed the Allahabad minority, though drawing a distinction between cases of joint and of several decrees. Subsequently further differences of opinion manifested themselves even in the Calcutta Court; See Christiana Benshown v. Benarashi Preshad A.I.R. 1914 Cal. 583 (upon which the judgment of the High Court in the present case was based); and Satish Chandra Chaudhuri v. Girish Chandra Chakravarty (1920) 47 Cal. 813 and Dewan Abdul Alim v. Abdul Hafiz A.I.R. 1927 Cal. 89 in both of which cases the opposite view seems to have prevailed. 583 (upon which the judgment of the High Court in the present case was based); and Satish Chandra Chaudhuri v. Girish Chandra Chakravarty (1920) 47 Cal. 813 and Dewan Abdul Alim v. Abdul Hafiz A.I.R. 1927 Cal. 89 in both of which cases the opposite view seems to have prevailed. In the courts of Madras, Bombay and Patna the view which was taken by the minority in the Allahabad case, and which favours the present appellants, has ultimately prevailed. Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the article; "where there has been an appeal", time is to run from the date of the decree of the appellate Court. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification neither as to the character of the appeal or as to the parties to it; the words mean just what they say. The fixation of periods of Limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage. Nor in such a case as this is the judgment-debtor prejudiced. He may indeed obtain the boon of delay, which is so dear to debtors and if he is virtuously inclined there is nothing to prevent his paying what he owes into Court. But whether there be or be not a theoretical justification for the provision in question, their Lordships think that the words of the article are plain, and that there having been in the present case an appeal from the mortgage decree of 24th June 1920, time only ran against the appellants from 24th August 1922, the date of the appellate court's decree. They are therefore in agreement upon this point with the Subordinate Judge, and they think that the order passed by him on 4th August 1924 was right". 7. They are therefore in agreement upon this point with the Subordinate Judge, and they think that the order passed by him on 4th August 1924 was right". 7. We thought it proper to state in detail the facts of the case and to quote their Lordships' words in extenso as an attempt was made before us by the learned Counsel for the respondent to distinguish the case from the present one. The facts as stated on page 166 and summarised above show that though the suit was upon a single mortgage the decree had assigned different portions of the mortgage money to different sets of decree-holders and that it had also made clear what the liability of each set of judgment-debtors was. None of the judgment-debtors was a party to the appeal preferred by Madan Mohan; in fact the appeal was only between the rival claimants for a specific portion of the decree debt. Nor was any portion of the final decree sought to be imperilled in the appeal. Still their Lordships decided the question of limitation in favour of the decree-holders and said that the relevant words in the clause must be interpreted in their plain and true grammatical sense without seeking to add any words or epithets to them or to qualify them in any other manner. The decision most relied upon for the respondent Mashiat-Un-Nissa v. Rani ILR 13 All.1 was disapproved by Their Lordships. It is the minority view of Brodhurst and Mahmood, JJ. in that case that found favour with their Lordships and it was not disputed that that minority view was against the respondent. 8. That the case cannot be distinguished in the manner the respondent's learned Counsel attempted to do will also be clear from a decision of the Nagpur High Court reported in Pandurang Kesho v. Kunwarlal A.I.R. 1941 Nag. 19. There the suit was for rendition of accounts by two lambardars regarding village profits for a certain year. The suit resulted in a decree against one defendant for a specific amount and against the other for another amount. The period of the liability of each of them was different. One of the defendants appealed against the decree passed against him, impleading the plaintiff alone as respondent. The suit resulted in a decree against one defendant for a specific amount and against the other for another amount. The period of the liability of each of them was different. One of the defendants appealed against the decree passed against him, impleading the plaintiff alone as respondent. The appeal was partly successful and it subsequently arose whether the execution application filed within three years of the appellate decree was within time as against the non-appealing defendant. The present argument that the decree really consisted of two decrees though in form it was only one decree was raised there but the contention was repelled. The arguments raised before us on behalf of the respondent were raised in that case and the decisions cited were also more or less the same. It is therefore interesting to notice how the learned Judge (Niyogi, J.) dealt with them. On page 20 of the report the learned judge after stating the facts paid: "The main argument submitted on behalf of the appellant is that the decree under consideration passed in Civil Suit No. 135/31 consisted of two decrees though in form it was only one decree and that Md. Hanif's appeal was not directed against that part of the decree which had been passed against Pandurang and that consequently the period of limitation for execution of the decree as against Pandurang could not be computed from the date of the Appellate Court's decree but from the date of the first Court's decree. Reliance is placed on 13 All.1 and 19 C.W.N. 287 at p. 289 in support of the argument. In the first mentioned case the majority opinion was certainly in favour of the contention that is put forward here but the minority dissented from it. In 19 C.W.N. 287 a Bench of the Calcutta High Court followed the majority view in the Allahabad Full Bench case and enunciated the principle that in dealing with the question of limitation in such cases it should be seen whether the original decree was really one decree or an incorporation of several decrees and whether the appeal against it imperilled the whole decree or not. But the majority view in 13 All.1 did not commend itself to the judges of the Calcutta High Court in a Full Bench case reported in 25 Cal. 594. In 53 Cal. 901,13 All.1 was again dissented from and 25 Cal. But the majority view in 13 All.1 did not commend itself to the judges of the Calcutta High Court in a Full Bench case reported in 25 Cal. 594. In 53 Cal. 901,13 All.1 was again dissented from and 25 Cal. 594 was approved. In the High Courts of Madras, Bombay and Patna also the majority opinion in 13 All.1 was not approved. The authority of the Allahabad Full Bench case which was already weakened by the repeated dissents expressed by the other High Courts in India has now been altogether extinguished by the view taken by their Lordships of the Privy Council in 60 Cal.1 (AIR 1932 PC 165). In that case it was specifically argued that an appeal, in order to save limitation under Cl.(2) of Art. 182, must be one to which the persons affected were parties and that it must also be one in which the whole decree was imperilled. Their Lordships after observing that these contentions were the subject of much difference of opinion in India propounded their view as follows." The learned judge here quotes the second paragraph extracted above from the Privy Council decision and then concluded the discussion as follows: "It is clear from the passage quoted above that their Lordships of the Privy Council have expressly disapproved of the majority opinion in 13 All.1 which was followed in 19 C.W.N. 287 at p. 289. An attempt is made on behalf of the appellant to show that the interpretation put upon Art. 182 by their Lordships of the Privy Council could not have been intended to apply to the case such as the present where there are really two decrees incorporated into one. It was in this form that the contention was put forth before their Lordships and that form had appealed to the learned judges who decided the case reported in 19 C.W.N. 287 at p. 289, but that was explicitly and unequivocally overruled by their Lordships of the Privy Council. It was in this form that the contention was put forth before their Lordships and that form had appealed to the learned judges who decided the case reported in 19 C.W.N. 287 at p. 289, but that was explicitly and unequivocally overruled by their Lordships of the Privy Council. On the construction put upon the Article under consideration by the Privy Council it is clear that whatever the nature of a decree, whether a decree proceeds upon a ground common to the defendants or not, and whether one defendant appeals from such decree in so far as it affects his own interests or whether all the defendants appeal from only a part of a decree, and whether the parties against whom execution is sought were parties to the appeal or not, the period of limitation under Art. 182 commences to run only from the date of the appellate decree. The appellant's contention must therefore fail " It is in our opinion unnecessary to add anything further to show that the Privy Council decisions in A.I.R. 1932 P.C.165 must govern this case. 9. Before leaving this part of the case it will be instructive to refer to a Full Bench decision of the Madras High Court where the same clause of the Limitation Act came up for consideration. There the appeal related only to a portion of the decree and one of the questions referred to the Full Bench was whether, under Art. 179 Schedule II of the Limitation Act (now Art. 182 of Schedule I), when a portion of the decree has been appealed against, and a portion has not been the period of limitation for an application to execute the portion not appealed against runs from the date of the original decree or the date of the decree on appeal? The Full Bench unanimously held that the period started only from the latter date. What Sir Arnold White, C.J. said on that occasion may with advantage be quoted here: "As regards the first question which has been submitted to us, I think the words of C1.2 in the third column of Art.179 of the Limitation Act should be read as meaning what they say. What Sir Arnold White, C.J. said on that occasion may with advantage be quoted here: "As regards the first question which has been submitted to us, I think the words of C1.2 in the third column of Art.179 of the Limitation Act should be read as meaning what they say. We are asked to read into the plain words "were there has been an appeal" some such words as "and all the parties to the suit are parties to the appeal and the subject matter of the appeal includes the whole subject-matter of the suit". I can see no good reason for doing so. It seems to me that the proper inference to be drawn from the fact that the Legislature has expressly limited the operation of Explanation I to C1.4 of the article, is that the Legislature did not intend that the plain words of C1.1 should be read as subject to the qualification or modification which, it has been argued, should be imposed upon them. A rule of law that in any case in which there has been an appeal from a decree, limitation shall begin to run from the date of the decree on appeal, irrespective of whether the decree was appealed from in whole or in part, may not be altogether scientific; but it is simple, certain and intelligible and I think it is the rule which the Legislature intended to lay down. The Calcutta cases on which the learned judges who decided the case of Muthu v. Chellappa ILR 12 Mad. 479 relied on as laying down the sounder principle have not been followed in the recent Full Bench decision of the Calcutta High Court in Gopal Chunder Manna v. Gosain Das Kalay ILR 25 Cal. 594". No doubt the decree does not appear to have been passed severally against the defendants nor does it appear that all the defendants were not parties to the appeal. To sum up, in the face of the Privy Council decision cited above and the meaning and import put upon it by the Nagpur High Court we cannot persuade ourselves to hold that the execution petition in this case was barred under Art. 166 of Schedule I of the Travancore Limitation Act. 10. Of the remaining cases relied upon by the learned Counsel for the respondent the decision in Jacinto v. Fernandez A.I.R. 1939 Bom. 10. Of the remaining cases relied upon by the learned Counsel for the respondent the decision in Jacinto v. Fernandez A.I.R. 1939 Bom. 454 relates to a case where there were two distinct decrees in the same suit passed on two different dates against different sets of properties of which one decree alone was appealed from. Sir John Beaumont, C.J. who gave the judgment in the case himself remarked that no question of limitation really arose in the case but only a question of practice in execution. The learned Chief Justice however further said the words "where there has been an appeal" in the last column of the article mean an appeal from the decree sought to be executed, and not an appeal from another decree, though made in the suit. 11. The three remaining cases cited by the respondent's Counsel viz., in Dhirendra Nath Sarkar v. Nischintapore Company (1917-1918) 22 Cal. W. Notes 192, Umrao Singh v. Hafiz Muhammad Abdulla - A.I.R. 1935 Lah. 949 and Parameswaran Pillai v. Joseph 1943 T.L.R. 1004 deal with the question as to how far a prior execution application would keep a decree alive regard being had to the provisions of Explanation I to Art. 182 (Art. 166 Travancore). This being the first execution petition filed in the case Explanation I has no relevance at all here. The Explanation relates to the application contemplated by Cl. 5 of column 3 of the article. The learned judge in the court below has however referred to the Explanation and relied upon it to base his conclusion that the execution was barred. We were unable to follow the line of reasoning. A passage in the judgment of Sir Arnold White, C.J. quoted earlier shows that the learned Chief Justice used the limited scope the Legislature gave to the Explanation by making it applicable to one clause alone as a pointer to show that the plain words of Cl. 2 should be read without any qualification. 12. Yet another matter to be mentioned before concluding is the learned judge's reference in his order to S. 41 of the Civil Procedure Code. That section as mentioned earlier only fixes an outside period after which execution of a decree, though not barred by the Limitation Act, may not be granted. It does not prescribe the period within which the application for execution is to be made. That section as mentioned earlier only fixes an outside period after which execution of a decree, though not barred by the Limitation Act, may not be granted. It does not prescribe the period within which the application for execution is to be made. The application of that section is not attracted to the present case where there has been no previous application. In Travancore, the Civil Procedure Code Act VIII of 1100 retained in the section the words "and granted" which occurred in the Code of 1882 (S. 230) but deleted in the Code of 1908. The first part of the section reads: "Where an application to execute a decree, not being a decree granting an injunction has been made and granted, no subsequent application to execute the same decree shall be granted upon any fresh application presented after the expiration of 12 years from-" The section then proceeds to mention the starting points thereunder. We are unable therefore to appreciate how the learned judge could have invoked the aid of S. 41 to decide the present case. In Sr. D.F. Mulla's Commentaries to the C.P.C. (11th Edition-1941) the following passage occurs in the commentary to S. 48: "Under S. 230 of the Code of 1882, the twelve years' limitation imposed by that section applied only if one at least of the previous applications was granted by the court but not otherwise. Under the present section it matters not whether the previous applications have been granted or refused or withdrawn. All that the section now provides is that where an application to execute a decree has been made, no order for the execution of the same decree shall be made upon any fresh application presented after the expiration of twelve years from the date specified in the section." In the 5th (1950) Edition of Chitaley at page 620 it is seen observed: "This section does not come into play until there has been a prior application for the execution of a decree." The following extract from Rustomji's Law of Limitation (Fifth Edition 1938) Vol. II page 1665 would seem to be apposite here: "S.48, Civil Procedure Code, deals with the maximum limit of time provided for execution and does not prescribe the period within which each application for execution is to be made. II page 1665 would seem to be apposite here: "S.48, Civil Procedure Code, deals with the maximum limit of time provided for execution and does not prescribe the period within which each application for execution is to be made. An application for execution of a decree will not necessarily be in time because filed within 12 years. It will be out of time unless it is made within 3 years from any of the dates mentioned in the third column of Art.182, Limitation Act. To an application for execution of a decree Art. 182 has first to be applied, and if it is found not wanting when tested by Art.182, then S.48, Civil Procedure Code will operate as a further test". 13. The learned judge therefore approached the question the wrong way round when he proceeded first to decide whether the application is in time according to S.41. Art. 166 is not at all referred to except when referring to Explanation I. With reference to S. 48 also question has been raised in decided cases as to what the starting point for limitation thereunder is where an appeal is preferred only with respect to a part of the decree or where one of the defendants severally made liable for a distinct portion of the subject-matter of the suit alone prefers an appeal. The first starting point prescribed by S.48 is the date of the decree sought to be executed. Though in view of what we have stated in the preceding paragraph the question does not strictly arise in this case we think it worthwhile to advert to it as well. The only reported decision we were able to come across where both S. 48 (then S. 230) and Cl. 2 of Col. 3 of Art.182 (then Art.179) had to be applied to a case or the interpretation of both provisions came up for consideration together is the Full Bench decision of the Madras High Court in (1903) ILR 26 Mad. 91, referred to earlier. 2 of Col. 3 of Art.182 (then Art.179) had to be applied to a case or the interpretation of both provisions came up for consideration together is the Full Bench decision of the Madras High Court in (1903) ILR 26 Mad. 91, referred to earlier. In that case the second question referred to the Full bench ran thus: "In the case of a decree for the payment of money or the delivery of property, whether under S.230(a) of the Code the period of limitation for an application to execute a portion of the decree which has not been appealed against runs from the date of the original decree or the date of the decree on appeal." The answer given by the Full Bench was the same as that given to question I viz., that the date of the appellate decree was the starting point. On this second question Sir Arnold White, C.J., said: "The question of construction which is raised by the second question which has been referred to us seems to me to be more open to doubt. In my opinion, however, "when a portion of a decree is appealed from and a portion is not appealed from, the Appellate Court in adjudicating on the appeal affirms that portion of the decree to which no exception has been taken, and though the decree does not in terms affirm that portion, it must be read and construed as so doing." 14. This view was concurred in by the other two learned judges constituting the Full Bench, Benson and Bhashyam Ayyangar, JJ. No doubt as mentioned earlier it might be said that that was not a case of the present type, that is, where a decree has been passed severally against various defendants. Decisions there are which hold that in the present type of cases the first court's decree furnishes the starting point for the execution of the portion of the decree which has not been appealed against. Those cases are found collected under foot-note 0) on p. 204 of Mulla's C.P.C. (1941 Edn.): under foot-note (18) on p. 629 of Chitaley (1950 Edn.) Vol. I and under foot-note (24) on p. 1165 in Vol. II of U.N. Mitra's Law of Limitation and Prescription (1950 Edn.). Those cases are found collected under foot-note 0) on p. 204 of Mulla's C.P.C. (1941 Edn.): under foot-note (18) on p. 629 of Chitaley (1950 Edn.) Vol. I and under foot-note (24) on p. 1165 in Vol. II of U.N. Mitra's Law of Limitation and Prescription (1950 Edn.). The two last mentioned commentaries say that the cases mentioned under these foot-notes can no longer be considered to be good law after the Privy Council decision in AIR 1932 PC 165. We venture to observe that that view is correct. To hold otherwise would be to hold that in cases similar to the present the starting point for limitation under S. 48 will not be the same as under Cl. 2 of Column 3 of Art. 182, Limitation Act. A worse anomalous position cannot perhaps be thought of. No question of the twelve year's rule of limitation however arose in two of the cases mentioned in the foot-notes viz., (1891) ILR 13 All.1 and (1904) 1 All. LJ 409, but it arose in the two other cases noted AIR 1923 Bom. 400 and AIR 1926 Cal. 664. 15. We would, in the result, allow this appeal with costs, set aside the decision of the lower court and send the execution case back to that court for disposal of the other points raised before it. Costs in that court should abide the result. Appeal Dismissed.