LexBHAWANIPORE BANKING CORPORATION, LTD. versus GOURISHANKARSHARMA
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- ,; ,, S.C.R. SUPREME COUR1' REPORTS 25 the octroi duty under the Municipal Act continues to be valid. On this point again the appellant's argu- ment is that the levy of a duty at any stage of the manufacture of bidis out of tobacco would be the levy of the excise duty and therefore those provisions were contrary to the provisions permitting the levy of the octroi duty. We have already discussed and rejected in the first part of the judgment this contention. It is wrong to think that two independent imposts arising from two different sets of circumstances were not per- mitted in law. In our opinion, therefore, there is nothing in the Excise Act to make its provisions contrary to the provisions of Section 66 (1) (e) of the Central Pro- vinces Municipalities Act or to the levy of octroi duty under the same. The appeal therefore fails and is dis- missed with costs. Appeal dismissed. Agent for the appellants: Rajinder Narain. Agent for the respondent: S. P. Varma. Agent for the Union of India: P. A. Mehta. BHA W ANIPORE BANKING CORPORA- TION, LTD. v. GOURISHANKARSHARMA [SHRI HARILAJ, KANIA C.J., SAIYID l!'AZL ALI, PATANJALI SASTRI, MEHR CHAND MAHAJAN, MuKHJmn;A and S. I~. DAS JJ.] Limitation Act (IX of 1908j, Art. 152, els. 2 and 3-Exe· 1mtion of decree-Limitation-Starting point-" TVhe1·e the1·e has been a re,view", meaning of-Applicatit!n for 1·e·ope11in(I decree under s. 30, Benr;al Money-lenders Act dismissed /01: default and appeal from order of <lis11iissal-lVhether afre fresh startina for liinitntion ~ :(or execution ~f decree-Interpretation of Art. 182, els. 2 and a. A preliminary decree on a mortgage was pa~~ed ex 1ia.rtn on the 2l~t August, 1940. The judgment debtor made an application uurlet ij, 36 of tho Bengal Money·lenderR Act for re·opeuing the Rani J(rishna RamHath AgaYWal of KamJ>tee v. Secretary, Mt1ni .. ciJ>al Committee,/ KamJ>tee Kania C.J. 1950 l\Iaroh 1'. 1915() BhawanijJore Banking Cor- J>oration, Ltd, v. Gowri Shankar Sharma Fazl AliJ, 26 SUPREME COURT REPORTS (1950] decree and the application was dismissed for default of appear ance on the ~0th 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 ~2nd 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., a.nd this appeal was disn1issed 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 Y/Ortl "review" has been used in Art. 182 of the Indian Limit:ttion Act, 1908, in a wide sense and that the application under ,. 36 of the Bengal Money· lenders Act was an application for revibw. cl. 3 of Art. 182 was not a.pplica.ble to the case inasmuch a,; tbe application under s. 36 having been dismissed fo1· default the court had no occasion to apply its mind to the question \vhether the decree could or should be re-opened ancl it could 11ot therefore be sidd t.ha,t ''there has been a review" of the decrer \Yithin the n1eaning of the !'ai<l clause. Held also, that; the \\"Ord~ 0 \vhere there bas beeu !ill appeal" in cl. 2 of Art. 182 must Le read with the word> "for the exe· cution of a decree or order" iu the 1st coluwn of the Article and the fa.ct that there was a.n appeal from the order rlis1nissing the application under O. IX. r. 9, wade in connection with the pro- ceeding under s. 36 of Money-lender• Act, could c.ot thernfore give a fresh starting point for limitation under Art. 18~, cl. \!. APPEAL from the High Court of Judicature' at Cal- cutta: Civil Appeal No. LI of 1949. Manohar Lal, (H. K. Mitter with him), for the appellant. B. G. Mitter, for the respondent. 1950. March 14. The Judgment of the Court was delivered by. j ' FAZL ALI ,J.-The only question to be decided in this appeal, which arises out of an execution proceed- ing, 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 fo this Court. • The facts may be briefly stated as follows. On the 21st August, 1940, a preliminary mortgage decree was ·~ '
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