Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | Limitation Act Interpretation of Art. 182 Execution of decree |
Content Type | Text |
Resource Type | Law Judgement |
Jurisdiction | India |
Act(s) Referred | Bengal Money-lenders Act, 1940 (10 of 1940) Limitation Act, 1908 (9 of 1908) |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Dismissed |
Headnote | Limitation Act (IX of 1908), Art. 152, cls. 2 and 3—Execution of decree—Limitation—Starting point— "Where there has been a review", meaning of—Application for reopening decree under s. 36, Bengal Money-lenders Act dismissed for default and appeal from order of dismissal—Whether give fresh starting for limitation for execution of decree—Interpretation of Art. 182, cls. 2 and 3.A preliminary decree on a mortgage was passed ex parte on the 21st August, 1940. The judgment debtor made an application under s. 36 of the Bengal Money-lenders Act for re-opening the decree and the application was 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 dismissing 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 bas been an appeal” in cl. 2 of Art. 182 must be read with the words "for the execution of a 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 a fresh starting point for limitation under Art. 182, cl. 2. |
Judge | Hon'ble Mr. Justice Sir Saiyid Fazl Ali |
Neutral Citation | 1950 INSC 2 |
Petitioner | Bhawanipore Banking Corporation, Ltd. |
Respondent | Gouri Shankar Sharma |
SCR | [1950] 1 S.C.R. 25 |
Judgement Date | 1950-03-14 |
Case Number | 51 |
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