PETITIONER: ANIL KUMAR GUPTA AND ORS. Vs. RESPONDENT: MUNICIPAL CORPORATION OF DELHI AND ORS. DATE OF JUDGMENT: 24/11/1999 BENCH: <NAME>, <NAME>, M.Srinivasan JUDGMENT:

<NAME>

Delay condoned in all the Special Leave petitions. Leave granted. Transposition application in SLP(C) Nos. 289- 292/99 allowed.

In all these appeals, the correctness of the judgment of <ORG> in L.P.A. 95/94 and Writ petitions batch dated 12.5.1998 is involved. The appellants ( except in SLP(C)..CC.3960/99) are the various candidates seeking appointment as Assistant Engineer (Civil) in <ORG> (hereinafter referred to as MCD) and whose claims for appointment have been accepted by <ORG>. We shall describe them as "appellants" in this judgment. The Civil Appeal arising out of SLP(C)..(CC. 3960/99) is filed by the contesting respondents in the above appeals. These are those whose selections have been upheld by <ORG> though there was some "irregularity" but whose seniority is in question now. We shall call them 'respondents' for convenience.

A brief resume of the events which have led to the filing of these appeals is necessary. ON 30.6.1989, the <ORG> invited applications for filling up 60 posts of Assistant Engineer (Civil) in <ORG> <ORG>. The applications were to be received before 31.7.89. The essential qualifications for appointment were (a) degree in Civil Engineering and (b) two years' professional experience. Age was not to exceed 30 years ( relaxable for government servants and <ORG> employees). 412 applications were received from the departmental candidates as well others. <ORG> of the <ORG> had to follow the following norms for awarding marks:

1. For Qualifications: 10 marks Break up Upto 50% marks 5 marks 51% to 60% marks 6 marks 61% to 70% marks 7 marks 71% to 80% marks 8 marks 81% to 90% marks 9 marks 91% TO 100% marks 10 marks

2. For Experience Break up 5 marks (i) Upto two years' experience Nil (ii) 3 to 12 years and above experience at the rate of 1/2 marks i.e. for 10 years 5 marks (iii) Viva-voce 15 marks The <ORG> prepared a list of Sixty candidates and all of them had scored 16 marks or more. 44 were placed in the waiting list. Some of the candidates who were not selected, filed writ petitions and the said petitions were dismissed by a learned Single Judge of <ORG> by common judgment dated 10.8.94. (Only one WP ( by <NAME>) was allowed). Letters Patent Appeals were preferred. Some fresh Writ petitions were also filed by candidates not selected and these petitions were tagged along with the appeals.

On 23.11.95, <ORG> passed an order referring to Justice <NAME>, Retired Judge of <ORG> the question whether the allocation of marks by the <ORG> to the various candidates was in accordance with the norms fixed. Justice <NAME> gave hearing and finally prepared a list of first 60 candidates and also a list of next 40 candidates. He also prepared a list of those who became eligible after the cut-off-date (i.e. 17.7.89) and before 31.7.89, the last date for receipt of application. He also prepared a list of candidates who enrolled after 1.7.89 and 31.7.89.

The result was that the <ORG> had before it two select lists, one prepared by the <ORG> and another by Justice <NAME>. There were candidates whose names were found in the <ORG> select list as also in the list prepared by Justice G.C. <NAME>. Justice <NAME> had held that, in his view, some candidates who were ineligible by the cut off date or the last date for receiving application, were wrongly included in the <ORG> list. Some other persons who were not eligible according to the <ORG> list were found to be eligible by Justice G.C. <NAME>.

After receiving the report of Justice <NAME>, <ORG> of <ORG> went into various issues. We are now concerned only with those who have been held eligible by the <ORG> but who, according to the appellants, are not eligible on the relevant date. In <ORG> the question arose whether those who were selected in spite of crossing the age limit or because of not having necessary experience, should be dropped. The appellants contended that the names of these irregularly selected candidates should not have been included in the main select list. <ORG>, when it decided the appeals, observed that if these selected candidates were to be asked to go home, they would suffer serious prejudice inasmuch as most of them had been in service for nearly ten years and had even got promotions. <ORG> felt that this was a humanitarian issue. The <ORG> then put the matter before the parties. It appears that there was `consent' between the parties that the services of these candidates need not be terminated but could be continued. <ORG> observed:

"Keeping in view, the human problems involved in the case, learned counsel for the parties consented to an order being made disposing of these appeals/Writ petitions on the basis of the following criteria:

(a) Candidates, who were earlier found eligible and appointed by the <ORG> and are later found by Mr. Justice <NAME> to be ineligible for appointment may be allowed to continue in service.

(b) Candidates, who were really found ineligible by the MCD and are later found by Mr. Justice <NAME> to be eligible for appointment and who have approached the <ORG> within reasonable time, should be accommodated by giving them employment against existing vacancies.

(c) Candidates, who are found by Mr. Justice <NAME> to be ineligible for appointment on the ground that they had obtained employment by producing false/fictitious certificate, should be cashiered."

<ORG> then took up certain cases of candidates who fell under category (c) and found that <NAME> was eligible as the certificate of experience produced by him could not be termed as false or fictitious. <NAME> was also to be treated as having requisite experience as the certificate produced by him could not be treated as fictitious. <NAME> and <NAME> were also similarly declared as eligible. <ORG>, to that extent, differed from Justice <NAME>.

So far as candidates who were found entitled to selection on the basis of marks as awarded by Justice <NAME> were concerned, it was declared that though they could now be appointed, they were to be treated as appointed in 1989 but without arrears of pay. Inter-se-seniority of the candidates now selected as per Justice <NAME>'s list and in respect of those whose names were common to that list and the MCD list, was to be based on their ranking in the merit list as prepared by Justice <NAME> and this was to be done after giving due opportunity to the affected candidates. That was how the Letters Patent Appeals and Writ petitions were disposed of by the <ORG>.

In these appeals by some of the selected candidates, it was contended by learned senior counsel <NAME>, <NAME> and <NAME> and others that Justice <NAME> was wrong in taking into account the pre- degree experience of respondents and that the candidates who were ineligible either on account of age or on account of not having experience as on the cut-off date - even if continued in service - should not be ranked in the merit list as per their marks but ought to have been placed at the bottom of the list. There was some argument before us whether the `consent' between the parties related not merely to the continuance of the respondents who were "irregularly" selected by the <ORG> but who were given ranking as per their marks. The appellants contended that there was no 'consent' regarding the grant of seniority to these candidates. The respondents contended otherwise.

Be that as it may, in the end it has become unncessary to decide the question as to the extent of the `consent'. This was because learned senior counsel for the contesting respondents, <NAME> contended alternatively that so far as the contesting respondents in regard to whom the appellants raised the question of their ineligibility and their seniority, they were all fully qualified and their appointments were not "irregular" nor "tainted" as observed by <ORG>. They had the necessary degree qualification or experience of two years by the due date and they were fully eligible. The observations of <ORG> about their ineligibility or their appointments being "irregular or tainted" was, according to learned senior counsel, wholly unwarranted. So far as their age was concerned, it was agreed before us that there was `consent' to that extent. <NAME> contended that in case of diploma holders, Justice <NAME> rightly took into account the experience of the respondents gained before they obtained the degree. But Counsel argued that Justice <NAME> went wrong in omitting the experience gained before the date of issuance of the marks certificates or experience gained before the actual announcement of degree results. In reply to the said contentions, learned senior counsel for the appellants contended that the respondents had not filed any Special Leave petition in time to attack the finding of <ORG> that the respondents' appointments were "irregular" or were "tainted". It was argued that respondents could not be allowed to contend that they had the necessary experience of two years. To get over this argument, the respondents have preferred an independent appeal, i.e., Civil Appeal arising out of SLP(C)..(CC.3960/99), with an application to condone delay. It was of course also submitted for respondents that even without filing an appeal they could attack the adverse observations made by <ORG> of <ORG>.

On those contentions, the points that arise for consideration are as follows: (1) Whether the respondents can justify the final order of <ORG> on other grounds upon principles referable to Order 41, Rule 22 of the C.P.C. without filing an appeal in time? (2) Whether, while deciding whether the respondents had two years' experience, the experience gained while holding diplomas could also be counted in addition to the experience gained after obtaining degree? (3) Whether, in some cases, Justice <NAME> was right in excluding the period of experience gained before the publication of result, or experience gained before issuance of the certificate of experience?

(4) Whether, on the basis of the answers to Points 2 and 3, the respondents were eligible for appointment as Assistant Engineers?

Point 1: In view of the recent judgment of this Court in <NAME> Vs. The State of Assam [1999 (7) SCC 435], it is, in our opinion, open to the respondents to attack the adverse findings arrived at or observations made by <ORG>, even if the respondents had not filed a separate appeal against that part of the judgment. Hence, the respondents can contend that the finding or observations that their appointments were tainted was not correct. We have also condoned the delay in filing the Special leave petition (CC. 3960/99) and therefore, for both reasons, it will be open to them to attack the said finding in the appeals of the appellants or as appellants in their own Civil appeal arising out of SLP (CC. 3960/99). Point 1 is decided accordingly.

Point 2: On this question, the learned senior counsel <NAME> for the selected candidates contended that the experience of the respondents while holding Diploma has to be counted in addition to the period of experience which they obtained after getting their degrees. Reliance in this behalf was placed upon <NAME> Vs. <NAME> (1993 Supple (2) SCC 419) and <NAME> Vs. Union of India (1997(4) SCC 753). On the other hand, learned senior counsel for the appellants, <NAME>, <NAME> and <NAME> contended that the experience of the respondents while holding diploma, could not be counted. They relied upon <NAME> Vs. Union of India (1992 Supple. (1) SCC 584).

We may point out that in the present case, the relevant provisions applicable and the notification dated 30.6.89 inviting applications refer to essential qualification as (i) Degree and (ii) 2 years' 'professional' experience. As stated earlier, experience upto 2 years is the minimum and those above 2 years, get 1/2 marks each year's experience ranging between 3 to 12 years, the maximum marks being 5 for experience. We may at the outset state that the provision regarding experience speaks only of "professional experience" for two years and does not, in any manner, connect it with the degree qualification. In our view, the case on hand is similar to <NAME> Vs. State of Maharashtra (1995 Supp.(3) SCC 332) where, while considering Rule 3(e) of the relevant Recruitment Rules, namely, the Maharashtra Motor Vehicles Department (Recruitment) Rules, 1991, this Court pointed out that the rule 3(e) which required one year experience in registered Automobile Workshop did not make any difference between acquisition of such experience prior to or after the acquisition of the basic qualification. It is true, in <NAME> case, the experience of a candidate while holding diploma was not counted. There the relevant rules stated:

"Section Officers possessing a recognised Degree in Civil Engineering or equivalent with three years' service in the grade failing which Section Officers holding Diploma in Civil Engineering with six years' service in the grade"

This Court based its decision initially on the practice obtaining in the department over a long number of years when the rules were understood as requiring full service of three years after obtaining the degree On that basis it was held that service was not to include service while holding a diploma. <NAME> case was, however, distinguished in <NAME>'s case. In the latter case the relevant rule referred to (i) Diploma holder Sub Engineers completing 12 years of service 35% (ii) Draftsman & Head Draftsman completing 12 years of service (iii) Graduate Sub- Engineers completing 8 years of service 10%. The Court was concerned with category (iii). It was pointed out that the Rule did not contemplate any equivalence between a degree with particular number of years of service as in N.<NAME> case. It was observed that the Rules in <NAME>'s case "clearly provide that the diploma holders having obtained a degree of engineering while continuing in service as Sub-Engineers shall be eligible for promotion to the post of Asst. Engineer in 8 years of service and quota of 10 per cent posts has been earmarked for such category of persons". The judgment in <NAME>'s case supports the case of the respondents. The above ruling in <NAME> was followed in <NAME>'s case. In that case, this Court again distinguished N.<NAME> case. This Court however cautioned that any practice which was de hors a Rule could be no justification for the department to rely upon. Such past practice must relate to the interpretation of a rule in a particular manner. This Court then followed <NAME>'s case as being one where the language of the rule was specific that "if a particular length of services in the feeder post together with educational qualification enables a candidate to be considered for promotions, it will not be proper to count the experience only from the date of acquisition of superior educational qualification because such interpretation will violate the very purpose to give incentive to the employee to acquire higher education". This decision in <NAME>'s case also supports the case of the respondents. Therefore, on the language of the notification dated 30.6.89, we are of the view that the 2 years professional experience need not entirely be experience gained after obtaining the degree.

It is true that in one of the counter-affidavits in CWP 606/1985, the <ORG> took the view that the experience ought to be after acquiring degree. But the clarification of the <ORG> dated 13.9.85 addressed to the <ORG> made it clear that the entire service including the service rendered before obtaining degree was to be taken into consideration. This letter has, in fact, been relied upon by the learned Single Judge of <ORG> for holding that service rendered before acquiring the degree was to be counted. For the aforesaid reasons, we hold that the service rendered by the Diploma holders before obtaining degree can also to be counted. Point 3 & 4:

The dispute regarding ineligibility centres round 18 candidates before us. Here, there are two categories. In regard to some of them, Justice <NAME> held that they were beyond 30 years by the cut off date while in regard to others he held that they did not have the required professional experience of two years. So far as the first category is concerned, they were all <ORG> employees earlier and age was relaxable as per the advertisement. Further, in view of the `consent' between parties in <ORG> and before us, those who were selected by the <ORG> in spite of exceeding 30 years and who otherwise were held by Justice <NAME> as having secured the necessary marks, are to be retained. There is no difficulty so far as these persons are concerned.

Coming to the second category, so far as <NAME> was concerned, rejection of his case by Justice <NAME> was based mainly upon the suspicion regarding the genuineness of two certificates of <ORG>,Gurgaon as regards his experience. Now, <ORG> has held that Justice <NAME> was wrong in suspecting these certificates. On that finding of <ORG>, the position will be that he will have to be treated as having more than two years experience, for the entire period of ten months from 1.4.86 to 31.1.87 in <ORG> will have to be counted rather than only two months and 14 days in <ORG> as done by Justice <NAME>. According to Justice <NAME>, his experience otherwise came down to 1 year, 7 months, 1 day. If, therefore, the entire ten months and not merely 2 months, 14 days period is taken into consideration, that will add up 7 months, 16 days, more making the experience 2 years, 2 months, 17 days. Coming to Sri R.K. Ailawadi, Justice <NAME> held that he got his degree on 29.7.87, the marks sheet is dated 24.7.87. Justice <NAME> considered his experience in <ORG> for the period 2.7.87 to 22.8.88 as 1 year, 1 month, 22 days and as JE in <ORG> from 23.8.88 to 31.7.89 as 11 months, 9 days, in all 2 years, 1 month, 1 day. Justice <NAME> excluded the experience prior to 24.7.87. Similarly, in the case of <NAME>, the marks certificate is dated 24.7.87 and the service in <ORG> is from 15.6.87 to 30.11.88 (1 year, 5 months, 16 days) and as JE in <ORG> is from 1.12.88 to 31.7.89 (8 months). If the service from 15.6.87 to 23.7.87 is not to be considered, the candidate will be ineligible. The issue relating to Mr. <NAME> and Mr. <NAME> is a common issue. In the case before us, the words used in the rules and notification are `professional experience' of two years. The narrow question is whether the experience gained after the examination and before the publication of results, can be taken into account. We may point out that this issue does not concern itself with a question sometimes raised in relation to cases where the result of the examination is not declared before the date of advertisement or last date of receipt of application and is announced after such date. Such cases may stand on a different footing. We are aware that, in regard to those cases, there are various rulings of this Court as to which is the crucial date. Here we are not concerned with such an issue because the advertisement is of 1989 and long before that in all the cases, the degree results were announced and degree certificates/marks sheets were also obtained. We are here concerned with a limited question as to whether the experience gained after campus selection, i.e., after final examination in BE was over and before publication of result of BE examination/or marks certificate, could be treated as `professional experience'.

In the context of the advertisement in this case and the facts - including the rival pleas as to `consent' in <ORG>, we are disinclined to hold that the experience rendered before actual announcement of results is to be excluded. We are dealing with a case in which no argument as the one raised before us was advanced in <ORG> on this issue. Added to this, the rival claims as to `consent' of parties in <ORG> remain. We are, therefore, not inclined to disturb the conclusion of <ORG> so far as these two officers are concerned.

Justice <NAME> has found <NAME>, <NAME>, <NAME>, <NAME>, <NAME> eligible by counting their experience while they held Diploma. These officers passed BE or AMIE later but long before the advertisement. Our decision on Point 2 holds good and Justice <NAME> was right in counting their pre-degree service.

As regards <NAME>, we have upheld the view taken by <ORG> that he had the requisite experience for appointment. But at the end of the judgment, <ORG> has observed that the inter se seniority of the candidates will be according to their ranking in the merit list prepared by Mr. Justice <NAME>. Mr.Justice <NAME> has not given any rank to <NAME> as he suspected his certificates and held him 1 to be ineligible, though he was awarded 182 marks by <ORG>. Now that <ORG> has accepted the certificates and he becomes eligible, we direct that the seniority given by Justice <NAME> will stand amended by placing <NAME> at the relevant 1 place treating him as having secured 182 marks.

So far as <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> are concerned, Justice <NAME> held that they were above 30 years and hence their appointments were irregular. But, in view of the fact that they were already working in MCD and for such candidates the age was relaxable and there was `consent' in <ORG> for their continuance, the appellants cannot raise any dispute in this Court, so far as these candidates are concerned. No specific argument was advanced in respect of other respondents.

For the aforesaid reasons, we hold in favour of the respondents and against the appellants on Points 3 and 4.

The appeals arising out of S.L.P.(C) Nos.14160/98, 287-288/99, 289-292/99 are dismissed. Appeal arising out of S.L.P.(C).....(CC 3960) is allowed, subject however to the modification pointed above in respect of the inclusion of <NAME> in the seniority at the 1 point of 182 marks. No order as to costs.


PETITIONER: THE SPECIAL TEHSILDAR, LAND ACQUISTION, <NAME> Vs. RESPONDENT: K.V. AYISUMMA DATE OF JUDGMENT: 23/07/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J) CITATION: JT 1996 (7) 204 1996 SCALE (5)548 ACT: HEADNOTE: JUDGMENT:

O R D E R This appeal by special leave arise from the order of <ORG> dated July 27, 1992 made in CRP No.695/92. The admitted facts are that in an acquisition of the land for public purpose, <ORG> by its award and decree dated March 31, 1989 had enhanced the compensation. The appellant had filed an application on July 29, 1991 lo review the award and decree. There was a delay in filing the application The learned subordinate judge had condoned the delay. Against the said order of condoning The delay the respondent has gone in revision to <ORG>. <ORG> in the impugned order Set aside the order of the Subordinate Judge. Thus this appeal by special leave.

It is now settled taw that when the delay was occasioned at the behest of the <ORG>, it would be very difficult to explain the day today delay. The transaction of the business of the <ORG> being done leisurely by officers who had no or evince no personal interest at different levels. No one takes personal responsibility in processing the matters expeditiously. As a fact at several stages they take their own time to reach a decision. Even in spite of pointing at the delay, they do not take expeditious action for ultimate decision in filing the appeal. This case is one of such instances. It is true that Section 5 of the Limitation Act envisages explanation of the delay to the satisfaction of the <ORG> and in matters of Limitation Act made no distinction between the <ORG> and the citizen. Nonetheless adoption of strict standard of proof leads to grave miscarriage of public justice. it would result in public mischief by skilful management of delay in, the process of filing the appeal. The approach of the <ORG> would be pragmatic but not pedandic. Under those circumstances, the Subordinate Judge has rightly adopted correct approach and had condoned the delay without insisting upon explaining every day's delay Sn filing the review application in the light of the law laid down by this <ORG>. The High <ORG> was not right in setting aside the order. Delay was rightly condoned.

The appeal is accordingly allowed. The case is remitted to <ORG> for disposal of the review petition in accordance with law. No costs.


JUDGMENT <NAME>, J.

1. This appeal raises a question as to the construction of Article 182 of Schedule I of the Indian Limitation Act, 1908.

2. In a suit brought many years ago for partition of certain properties, held jointly by the parties to this appeal and their predecessors, a receiver was appointed with power to raise a loan on the security of a mortgage of the properties. The receiver borrowed Rs. 18,000 from some of the co-sharers, and on July 10,1894, he executed a mortgage of the properties in their favour. Amongst the mortgagees were <NAME> and <NAME>, who are the appellants before <ORG>, and <NAME> and his son, who are respondents Nos. 24 and 27 respectively. The position at that date was that some of the co-sharers were mortgagees and all the co-sharers were mortgagors.

3. In 1907, after the shares of the several co-sharers in the partition suit had been alloted to them and the receiver discharged, <NAME> and his son instituted the suit out of which the present appeal arises in <ORG> to enforce the mortgage. In this suit <NAME> claimed that the appellants (defendants Nos. 11 and 12) had assigned their interest in the mortgage to him. The Subordinate Judge upheld his claim, and after taking accounts between the parties, passed a preliminary mortgage decree declaring inter alia the liability of the appellants to pay a sum of Rs. 4,467, which they accordingly brought into <ORG>.

4. On appeal to <ORG> at Calcutta a compromise was effected between the parties, and on June 10, 1913, a preliminary decree in supersession of the decree of the Subordinate Judge was passed by <ORG> in terms of the compromise.

5. Under this decree <NAME> claim against the appellants was disregarded, and the appellants were shown as mortgage-creditors for Rs. 14,615-15-3, The appellants thereupon applied to the Subordinate Judge for the withdrawal of the Rs. 4,467. <NAME> opposed their application, reasserting his former claim, but his contention was overruled, and the appellants were allowed to withdraw their deposit. <NAME> appealed to <ORG>, but his appeal was dismissed,

6. In the preliminary decree as passed by <ORG> 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. After the date of the decree two out of the eight judgment-debtors paid the amount due from them under the decree. The rest did not pay, and on June 4, 1916, <NAME> applied to the Subordinate Judge for a final mortgage decree, In his application he again claimed that the appellants had assigned their interest in the mortgage to him, and prayed that an order should be made to that effect On June 24, 1920, the Subordinate Judge delivered his judgment disallowing <NAME>'s claim, and a final decree was passed for the sale of the mortgaged properties that had come to the share of the remaining six judgment-debtors. The decree was drawn up on August 2, 1920, but properly dated as of June 24 It contained a declaration, in conformity with the judgment, that the appellants were entitled to payment of the above-mentioned sum of Rs. 14,615-15-3 out of the proceeds of the sale of the properties.

7. On August 27,1920, <NAME> presented an application to <ORG> purporting to be an appeal from the " order " of the Subordinate Judge of June 24, 1920, and alleging, what was clearly untrue, that no decree had been drawn up. His objection was only to the decision against him in respect of the assignment, and he joined as parties to the appeal only the other decree-holders and not the judgment-debtors.

8. The 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 <NAME> and <NAME>, Objection was taken to the form of the appeal; <NAME> asked to amend but this was refused, In the result, the appeal was dismissed both on the ground of irregularity and upon the merits, and the dismissal was embodied in a decree of <ORG> dated August 24, 1922.

9. It is upon the effect of this appeal that the decision of the question under Article 182 of the Indian Limitation Act now before the <ORG> depends.

10. On October 3, 1923, the appellants presented an application to the Subordinate Judge for execution by sale of the mortgaged properties. It was opposed by some of the judgment-debtors the present respondents Nos. 1 to 4, on the ground that it was barred by Article 182. The material portion of that article is in these terms:-

_________________________________________________________ Description of Period of Time from which period application. limitation. begins to run. __________________________________________________________ For the execution Three years ... 1. The date of the decree of a decreeor order or order; or of <ORG> not provided for by 2. (where there has been article 183 or by an appeal) the date of section 48 of the Code the final decree or order of Civil Procedure, of <ORG>. 1908. _________________________________________________________________

11. If the three years are to be calculated, as the respondents contend, from the date of the decree of the Subordinate Judge, viz. June 24, 1920, the application was manifestly out of time; it was within time if the critical date is that of the decree of <ORG> of August 24, 1922, and the decision of this question depends on whether <NAME> appeal which was dismissed on the latter date was an appeal within the meaning of the second clause in the third column of the article cited above. The Subordinate Judge held that it was, and that the application was in time; the judgment-debtor-respondents appealed, and <ORG> took the opposite view, and dismissed the application of the appellants.

12. The dismissal is supported upon three grounds, namely, (1) that <NAME> application of August 27, 1920 (hereinafter for convenience referred to as the 1920 appeal), was by reason of its irregularity not an appeal at all, but merely an abortive attempt to appeal; (2) that an appeal in order to save limitation under Clause 2 of the article must be one to which the persons affected, i.e., in the present case the judgment-debtors, were parties; and (3) that it must also be one in which the whole decree was imperilled.

13. In their Lordships' opinion there is no force in the first of these contentions. There is no definition of appeal in the Code of Civil Procedure, but their Lordships have no doubt that any application by a party to an appellate <ORG>, asking it to set aside or revise a decision of a subordinate <ORG>, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent. The 1920 appeal was admitted and was heard in due course, and a decree was made upon it.

14. The second and third contentions have been the subject of much difference of opinion in <CITATION> (1889) I.L.R. 13 All, 3, F. B. three of the Judges in <ORG> took one view, and two the other, <CITATION> (1898) I.L.R. 25 Cal. 591, F. B. 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 <ORG>; see Christiana Sens Law v. Benara-shi Proshad Chowdhury (1914) 19 C.W.N. 287 (upon which the judgment of <ORG> in the present case was based); and <CITATION> (1920) L.L.R. 47 Cal. 813 and Dewan Abdul Alim v. <NAME> (1926) I.L.R. 53 Cal. 901, 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.

15. 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 ran from the date of the decree of the appellate <ORG>. There is, in their Lordships' opinion, no warrant for reading into the words quoted any qualification either 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 thorney 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 <ORG>, 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 Juno 24, 1920, time only ran against the appellants from August 24, 1922, the date of the appellate <ORG>'s decree. They are, therefore, in agreement upon this point with the Subordinate Judge, and they think that the order passed by him on August 4, 1924, was right.

16. Their Lordships will accordingly humbly advise His Majesty that this appeal should be allowed, that the decree of <ORG> dated February 16, 1926, should be set aside, and the order of the Subordinate Judge dated August 4, 1924, restored. The respondents Nos. 1 to 4 must pay the cost of the appellants in <ORG> and before <ORG>.