P (PLP)

passed. in a suit for such refund) the date of such last mentioned decree or, iii the case of an appeal therefrom, the date of the final decree of the Appellate Court or of the withdrawal of the appeal, or 7. (Where the application is to enforce any payment which the decree or order directs to be made at a certain date) such date. By reason of what is stated in column 3 of the Article, the starting point of limitation varies, according as there has or has not been an appeal or a review of judgment or an amendment of the decree. The law of limitation was embodied in Act XIV of 1859. By Act IX of‑ 1871 the whole law as to limitation of suits was repealed. In 1877, the Act of 1871 was repealed and Act XV of 1877 was passed codifying the law as to limitation. By Act IX of 1901,', the law for the limitation of suits and for other purposes has been consolidated and .amended. For the purpose of this case the amendments, made by Act IX of 1927 are relevant and they have been noted in the extracts I have set out above. I may state here that Article 167 (2) of the Act IX of 1871, Article 179 (2) of Act XV of 1877 and article 182 (2) of Act, IX of 1908 are substantially in the same terms. The principles underlying these provisions are two‑fold. One principle, as has been stated by Sir Dinshaw Muila in Nagendra Nath Dey and another v. Suresh Chandra Dey and others, (1932) L. R. 59 I. A. 283 at page 288 is " 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." " The other principle or " narrow view " is that, when, on appeal, the decree or order of a Subordinate Court is affirmed, modified or reversed by the High Court, the period of limitation for an application for execution of the final decree or order is the period of limitation applicable to decrees of the Subordinate Court itself, and of decree of the High Court." I shall briefly state the history of the legislation, which is interesting. The Legislature in framing Act XIV of 1859 had to deal with two distinct judicial systems‑the one consisting of the Courts of the East India Company or Mofussil Courts and the other, the Courts established in the Presidency Towns and elsewhere by Royal Charter, and administering the law of England subject to certain statutory, exceptions and modifications. The law of limitation that governed the former was to be found in the Regulations which had no force within the Presidency Towns; whilst the law of limitation which governed the latter consisted of the Statutes of James the First, together with such other portions of the Statute Law of England applicable to the subject as had been introduced into India and the general rules touching the effect to be given to the lapse of time which depended on the decisions of the Courts in England. It appears that in dealing with this matter of execution, the Legislature was moved by certain reasons approved by those who were conversant with the administration of Justice in the Mofussil to subject, execution of decrees of the Mofussil Courts, whether of appellate or of original jurisdiction, to the years' limitation ; whilst, on the other hand, being pressed by the weight and value which the law of England gives to a judgment or decree of a superior Court, it prescribed 12 years' limitation for enforcing the decree of the Supreme Courts. Hence the distinction made by the 19th section of the Act prescribing a period of 12 years' limitation for execution of decrees of Courts established by Royal Charter meaning thereby the Supreme Courts in the three Presidency Towns and the same‑ term ‑was to be found in the preamble of Act VIII of 1859 (the Code of Civil Procedure), which when first passed was not intended to have operation in the Supreme Courts ; and by the 20th section of the Act prescribing a period of three years' limitation for application for execution of decrees passed by other Courts.. The two systems of Judicature were subsequently amalgamated and the High Courts were established by Letters Patent under powers given by the 24th and 25th Vict. t. 104 and the 28th Vict. C.

15. The general scheme of the amalgamation was to constitute one general Court, of which the judges sitting in various Divisional Courts were to exercise the functions of both the Supreme Court and the Mofusil Courts (the Sudder Dewanny Adawlut and the Sudder Nizamat Adawlut), all of which were abolished. The powers and jurisdiction of the Supreme Court with slight modifications were transferred to the High Court to be exercised by it as a Court of original jurisdiction and those of the Appellate Mofussil Courts were transferred to it to be exercised by it as an Appellate Court. But the law to be administered by it as a Court of original jurisdiction was substantially that administered by the Supreme Court ; whilst that to be administered by it on appeal from the Mofussil Courts was generally that .of those Courts. The Code of Civil Procedure (Act VIII of 1859) was made the procedure of the Court in its original as well as in its appellate jurisdiction and superseded the procedure which had previously obtained in the Supreme Court. But that Code did not touch the subject of limitation, which continued to be regulated by Act XIV of 1859. The period of limitation of execution of decrees of Mofussil Courts within three years remained as operative after the amalgamation as it was before that event. There was a conflict of decisions on the point as will appear from the observations of the Right Hon'ble Sir James Colvile in Kristo Kinkur Roy v. Raja Burrodacaunt Roy and others (1872) 14 M. I. A. 465 at page 487, where it has been observed that one of the learned judge, who came to the conclusion that the longer of the two periods of limitation (mentioned in the 19th and 20th sections of the Act XIV of 1859) was the period applicable, admitted that his construction " involved consequences absurd in themselves, and, presumably, contrary to the intention of the Legislature." It is therefore clear that in order to put an end to this controversy, section 20 of the Act XIV of 1859 has been repealed and section 167 of the Limitation Act (IX of 1871) has been enacted in .the form in which it appears, in order to make the intention of the Legislature clear and but. for that necessity it might have taken a different form. The reason why in column (3) of Article 167 different starting points for limitation were prescribed was to prevent any argument being advanced that, as the decree of the Subordinate Court merged in or was superseded by the decree of the High Court in appeal, the period of limitation applicable was the period applicable to the decrees of the High Court and not that applicable to the decrees of the Subordinate Courts. The provisions in Article 167 (2) of the Act of 1871 have been re‑enacted ‑in Article 179 (2) of the Act XV of 1877, and substantially the same provisions are to be found in Article 182 (2) of the Limitation Act (IX of 1908) subject to the amend ments made by Act IX of 1927. In order to interpret clause (2), in column (3) of Article 182 of the Limitation Act, it is necessary to refer to the scheme of the article. In column 3 it provides for seven points of limita tion, out of which 6 and 7 are special cases. The first clause is the simplest case where the starting point of limitation is furnished by the decree itself and clauses 2 to 4 are starting points in cases where either there has been an appeal or the decree is sought to be reviewed and review has been granted or the decree has been amended on an application for amendment and clause 5 refers to a case where there has been an application for execution, or an application for step‑in‑aid of execution. The clauses 2, 3 and 4 therefore contemplate cases in which the decree may be altered upon proper proceedings having been taken for such alteration. Clauses 4 and 5 specifically refer. either to the decree or order sought to be executed, but clauses 2 and 3 do not specifically refer to the decree or order sought to be executed and it need not be held on that ground that the Legislature intended to make any distinction. In the Act of 1877, clause (4) did not find any place but it was added sub sequently and in it the expression used was " where the decree has been amended " just as in clause (5) after the words applica tion for execution or take some step‑in‑aid of execution, the words "of the decree or order" found a place. Now the clauses (2) and (3) are nearer to clause (1) than clauses (4) and (5), and when clause (2) begins with the words " where there has been an appeal" the proximity of these words to the words "the date of the decree or order" in clause (1) is, in my opinion, quite enough to show that the Legislature intended that the ` appeal " meant " appeal from the decree or order " sought to be executed, because there are no other words in clause (2) in the third column of Article 182 or near about it to which the word " appeal " could have reference. The word " appeal ". in my opinion, therefore, must mean an appeal from the order or decree sought to be executed. When I shall refer to the decided cases, it will be seen that this view of mine has been accepted in the largest number of decided cases. The only other interpretation which has been sought to be placed upon the word, namely, appeal which is likely to imperil the decree or order, cannot be given to it without inserting in clause (2) the words " likely to imperil the decree or order " or some equivalent words after the words "appeal ". Secondly, this interpretation is consistent with the scheme of clauses (1) to (5) ; clause (1) having reference to the cases in which (a) the decree or order remains unaltered, because there has been no appeal, no application for review or amendment and (b) there have also been no application for execution or step‑in‑aid of execution ; clause (2) has reference to a .case where there has been an appeal, clauses (3) and (4) refer to cases in which the decree has been altered upon an applica tion for review of or amendment ; and clause (5) refers to the case in which, there has been an application for execution, or step‑in‑aid of execution of the decree. If clauses (3), (4) and (5) have reference to cases where the review, the amendment and the application for execution or the application for a step‑in‑aid of execution are of the decree or order sought to be executed, then clause (2) must have reference to cases in which the appeal referred to is from the decree or order sought to be executed. The intention of .the law of limitation is, not to give a right where there is not one, but' to impose a bar after a certain period, to a suit to enforce an existing right. Hurrinath Chatterji v. Mohunt Mothoor Mohan Goswasni (1893) L. R: 20

1. A. 183 at page 192 and Lal Khunnilal and others v. Kunwar Gobind Krishna Narain and others (1911) L. R. 38 I. A. 87 at page

102. The purpose of the second schedule of the Limitation Act is only to prescribe the period of limitation for a suit, application or appeal. That appears from the 3rd section of the Act. It is a well‑settled principle that in construing a statute of limitation, the language used in the statute ought to receive such a construction as the language in its plain meaning imports. Chief Justice Tindal in construing Lord Tenterden's Act in England in the case of Hyde v. Johnson, 2 Bingham's New Cases at page 776 observed: " Where therefore we find in the statute, now under consideration, that it expressly mentions the signature of the party only, we think it a safer construction to adhere to the precise words of the statute, and that we should be legislating, not interpreting, if we extend its operation to writings signed, not by the party chargeable thereby, but by his agent." It has been well‑stated by Mitra in his Tagore Law Lectures, 6th Edition, (1932) Vol. I, p. 255. " A law of limitation and prescription may appear to operate harshly or unjustly in particular cases but where such law has been adopted by the state ..it must, if unambiguous, be applied with stringency. The rule must be enforced even at the risk of hardship to a particular party. The judge cannot on equitable grounds enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it ". In Luchmee Buxsh Roy v. Runjeet Ram Pandey, (1873) L. R. 13 Bengal Law Reports 177 (P. C.) at page 182 it has been held that statute of limitation must receive a construction accord ing to its plain words. In Abhirarf Goswami v. Shyama Charan Nandi and others (1909) L. R. 36 I. A. 148 at page 162 Sir Andrew Scoble observed : " Statutes of limitation like all others, ought to receive such a construction as the language in its plain meaning, imports". In General Accident, Fire and Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim, (1940) 67 I. A. 416, Viscount Maugham in delivering the judgment of the Board while construing Article 68 of the Limitation Act observed: " It may be desirable to point out that a Limitation Act ought to receive such a construction as the language in its plain meaning imports. Very little reflection is necessary to show that great hardship may occasionally be caused by statutes of limita tion in cases of poverty, distress and ignorance of rights ; yet the statutory rules must be enforced according to their ordinary meaning in these and in other like cases ". Keeping in view the above principles, I hold that the word " appeal " in clause (2) of Article 182 column (3) must bear its ordinary primary and plain meaning. The word " appeal " has not been defined in the Limitation Act, but it has been used in several articles of the Act. The right of appeal is a creature of statute and it is not in itself a necessary part of the procedure in an action but is the right of entering a superior Court and invoking its aid and interpretation to redress the error of the Court below. "It has been justly remarked that, when precision is required, no safer rule can be followed than always to call the same thing by the same name. It is, at all events1treasonable to presume that the same meaning is implied by the use of the same expression in every part of an Act. Accordingly, in ascertaining the meaning to be attached to a particular word in a section of an Act, though the proper course would seem to be to ascertain that meaning if possible from a consideration of the section itself; yet, if the meaning cannot be so ascertained, other sections may be looked at to fix the sense in which the word is there used." Maxwell on the Interpretation of Statutes, 9th Edition, pages 322‑23. "It is preferrable to adopt the 'primary' meaning of a word because the primary meaning of a word varies with its setting or context and with the subject matter to which it is applied because reference to the abstract meaning of a word is of little value in interpreting statutes". Craise on Statute. Law, 4th Edition page 68. "We should remember that where the language of an Act is clear and explicit, we must give effect to it, whatever may be the consequences, for in that case the words of the statute speak the intention of the Legislature." Attorney General v. Sillem (1863) . 2 H. L. C. 431 (510). Lord Halsbury in the Mersey Docks and Harbour Board B. Henderson Brothers (1.888) 13 App. Cas. 595, at p. 602 observed : "No case can be found to authorise any Court to alter a word so as to pro duce a "casus omissus". Lord Fitzgerald in Charles Bradlaugh v. Henry Lewis Clarke (1883) 8 App. Cas. 354 at page 384 quoted with approval the true rules laid down by Burton, J. in Warburton v. Loveland, 1 Hudson & Brooke 648 as follows: "I apprehend, it is a rule in the construction of statutes that in the first instance the grammatical sense of the words is to be adhered to. If that is contrary to, or inconsistent with, any expressed intention or dec lared purpose of the statutes, or inconsistency, the grammatical sense must then be modified, extended, or abridged, so far as to avoid such an inconvenience, but no further." In that case Lord Black burn at pages 373‑373 was pleased to observe as follows : "All statutes are to be construed by the Courts so as to give effect to the intention which is expressed by the words used in the statute. But that is not to be discovered by considering those words in the abstract, but by enquiring what is the intention expressed by those words used in a statute with reference to the subject‑matter and for the object with which that statute was made ; it being a question to be determined by the Court, and a very important one, what was the object for which it appears that the statute was made I think it has always been held that when a statute was passed for the purpose of re‑enacting former statutes, all the statutes in pari materia are to be considered, in order to see what it was that the Legislature intended to enact in lieu of the repealed enactment." In Cox v. Hakes, (1890) 15 A. C. 506 at p. 529, Lord Harschell staled the rule as follows ; "It cannot, I think, be denied that, for the purpose of construing an enactment, it is right to look not only at the provision immediately under construction, but as any others found in connection with it, which may throw light upon it, and afford an indication that general words employed in it were not intended to be affected without some limitation". Lord Field in that case observed at page 542: "Now the admitted rule of construction, from which I am not at liberty to depart, lay down that I cannot infer intention contrary to the literal meaning of the words of a statute, unless the context, or the consequences which would ensue from a literal interpretation, justify the inference that the Legislature has not expressed something which it intended to express, or unless such interpretation (in the language of Parke B. in Backe v. Smith, 2 M. & W. 191 at page 195) leads to any manifest "absurdity on repugnance with this super added qualification that the absurdity or repugnance must be such as manifested itself to the mind of the law maker, and that such as may appear to me (Per Willes, J. in Moteram v. Easter Countries Railway Companies, 7 C. B. (N. S.) 58, 80). It is elementary that the primary duty of a Court is to give effect to the intention of the Legislature as expressed in the words used by it and no outside consideration can be called in aid to find that intention." Per Mahajan, J. in the case of New Piece Goods Bazar Co. Ltd., Bombay v. Commissioner of Income‑Tax Bombay, (A. I. R.) 1950. Supreme Court 165 at p.

168. The sole question for decision in this appeal is whether the contention on behalf of the decree‑holder that the word "appeal" in Article 182 (2) of the Limitation Act means an appeal which imperils the decree sought to be executed and, therefore, the appeal from the order refusing to set aside the ex‑parte decree is an appeal contemplated by Article 182 (2) and the limitation for execution is to be reckoned from the date of the final order in that appeal or whether the contention on behalf of the judgment‑debtor that the word "Appeal" in Article 182 (2) means an appeal from the decree sought to be executed and no other appeal and that the appeal from the order refusing to set aside the ex‑parte decree is not contemplated by that article, is correct on principle. Each party has supported his contention by a reference to the decided cases, which are not in any way reconcilable. Opposing views have been entertained about the correct interpretation of this Article 182 (2) of the Limita tion Act: In this state of conflict, I think it is desirable to construe the clause independently according to its language and context keening in view the observations of their Lordships of the Judicial Committee of the Privy Council in Nagendranath Dey v. Suresh Chandra Dey, (1932) L. R. 59 I. A. 283, and of other high authorities, namely, that in interpreting statute of limitation, the strict grammatical meaning of the word is the only sole guide and it is permissible to take into account the history of the legislation. The expression to be construed is "where there has been an appeal". This conveys no meaning unless some more words are added to or read into it. In my opinion, the conflict is due to the fact that various learned Judges have read different words into this expression according to their own light and view to give it a meaning. The word "appeal" stands for a relative concept, because the idea of an appeal is always related to and depended on the idea of that from which it is an appeal. An appeal must always be from some decision or some decree or sortie order, because there cannot be an appeal in the abstract, an appeal from nothing. Therefore, whenever the word appeal is used in any expression to convey any meaning, that from which it is an appeal, should be, and always is, indicated either by express words or by necessary implication. In the present instance for consideration, there being no such inten tion indicated by express words, it follows that the Legislature intended it to be understood by necessary implication from the context. It is common form of speech to leave unexpressed words, which refer to something which has been mentioned immediately before and it is thus that language attains perfection by achieving brevity without sacrificing clarity of expression. So this method by which the language required to give expression to an idea is abbreviated, supplies the key to the interpretation of the expression under my consideration. In my opinion, therefore, it seems that the words required to define the "appeal" mentioned in clause (2) were omitted, because it was thought that according to the rule of grammar or common speech, they would be understood to refer to something mentioned immediately before in clause (1), namely, the decree or order sought to be executed, and not because it was intended that the Court or the interpreter should be left to guess at any meaning. I see no ground whatsoever to impute to the Legislature an intention to be unintelligible; mysterious or enigmatic, nor do I find any reason to suppose that the Legislature is unaware, that to talk of any appeal without indicating by express words or by necessary implication that an appeal from which is meant, is to talk in obscure or mysterious, if not in wholly intelligible, language. Accordingly, reading clause (2) with clause (1) grammatically, that is according to the rules of common speech, and considering the entire expression "the date of the decree or order, or where there has been an appeal, the date of the final decree order of the Appellate Court," I understand that the word appeal mentioned in clause (2) refers to an appeal from the decree or order sought to be executed and to no other appeal. I have endeavoured to decide the question before me keeping in view the aforesaid general principles regarding construction of statutes: and the purpose of the act of limitation and the scheme of Article 182 of the Act. In solving the problem before me, I have got very great' assistance from Mr. Upendra Kumar Roy and Mr. Abinash Chandra Bhattacharyya, the learned Advocates appearing for the parties, who have placed before me many of the relevant decisions in support of their respective contentions with their general comments and criticisms and also advanced arguments on the general principles governing this question before me. I may state here that' whether the decree of the trial Court has been affirmed or has been modified on appeal or on review of judgment is 'wholly immaterial in ascertaining what the starting point of limitation is. The Court executing the decree has merely to see‑whether, in point of fact, there has been an appeal or review of judgment. I, shall show presently, when I discuss the various decisions, that in some of the decisions in which the "broad view" .has been accepted, it has been completely overlooked. I have already observed that in interpreting statutes, statutes pari materia may be considered. The present Code of Civil Procedure is Act V of 1908 and the Limitation Act is Act IX of 1908'. The two Acts were passed by the Legislature within a very short time and it can reasonably be expected that the Legislature used the same words and expressions in both the statutes in the same primary meaning in the same context unless of course there was no inconsistency or repugnancy. Again if there has been a casus omissus in the subsequent statutes, it can reasonably be presumed that it should not have escaped the attention of the Legislature: So if in the Limitation Act a particular word or expression has been used, it will bear the same meaning as used in the Code of Civil Procedure and nothing more or less. Therefore, the word "appeal" or "judgment" or "decree" in the Limitation Act may be presumed to bear the same meaning in like context or subject, as those words have been used in the Code of Civil Procedure provided that by use or' such meaning there is no inconsistency or repugnancy in the subject or context. For example, the Code of Civil Proce dure and the Limitation Act have been held to be statutes pari materia in the case of Ram Chandra Mardaray Deo v. Phalu Patnaik and others, A. I. R. (1950), Orissa, 125, B. B. when interpreting the word "date of decree" in clause (1) of column (3) of Article 182 of the Limitation Act it has been held that similar words and expressions occurring in the two statutes should be given the same meaning unless there is something repugnant in the subject or context. The word "judgment" in clause (3) of column (3) of Article 182, in my opinion, means and can only mean, the "judgment" in the suit in which the decree or order of which execution is sought, has been passed, and by a parity of reasoning the word "appeal" in clause (2) should be construed as an "appeal" from the decree or order, of which execution is sought. It is a well established rule for construing the Indian Statute of Limitation that we must read the first and third columns together. See Mulla Veetil Seeti Kutti v. K. 16 I. K. Kunhi Pathumma and others, (1915) I. L. R. 40 Mad. 1040 F. B. at pp. 1.051 and 1053. I think that clause (2) in 3rd column of the Article 182 is subject to clause (1) as also clauses (3) and (4). If column (1) and clause (2) occurr ing in column 3 are‑ read together, I think it is plain that the word "appeal" in clause (2) must mean an appeal from the decree or order sought to be executed, and it cannot mean an appeal from an, order rejecting an application to set aside the ex parte decree. The difficulty in the way of holding that the word "appeal" means an appeal capable of affecting the decree, that is, in accepting the "broad view" is obvious from one or two illustrations. Suppose that a decree has been passed and the defendant seeks to set it aside on the ground of fraud and his suit is dismissed and an appeal is preferred against it. If we are to hold that the word "appeal" means an appeal capable of affecting the decree, then the appeal of the defendant, who is seeking to avoid the decree on the ground of fraud, will come within the purview of Article 182, clause (2) in column

3. Suppose, again, that his appeal from the decree is dismissed ex‑parte and he makes an application to the appellate Court to re‑admit the appeal and that application is refused and he then appeals from this order refusing to re‑admit this latter appeal would necessarily imperil the decree and there would be a question "sub-judice between any of the parties", which the defendant seeks to set aside on the ground of fraud with the result that this appeal again would have to be held to come within the purview of Article 182, clause (2) in column (3), and we could go on arguing like that as long as it is possible to file an appeal from the order refusing, to set aside an ex‑parte dismissal of an appeal on default or to re‑admit the appeal. It appears to rime that ii this interpretation were to be accepted, we would be extending the meaning of the word "appeal" beyond what can reasonably be done, and that is apart from the fact that we have got to interpret the words in the context in which they are placed. The argument of the learned Advocate for the appellant that if there is any collateral proceeding in the suit in question' affecting the decree, then the word "appeal" in clause (2) of column (3) will be attracted, does not appear to me sound.. To test the proposition let us consider that when a decree is passed and an appeal is preferred against that decree, the appellate Court can stay execution of that decree pending that appeal on sufficient cause being made out, but it is now well established that when an ex parte decree has been passed and the defendant files, an application to set aside the ex parte decree under O. IX rule 13, Civil Procedure Code and that application is rejected, the defendant then files an appeal against that order under "O. XLIII rule (1) (d) Civil Procedure Code and files an application to stay execution of the decree in the suit pending the latter appeal, stay should not be granted. See Bhagwat Rajkoer v. Sheo GoZam Sahu, (1904) I. L. R. 31 Cal. 1082 where Sir Ashutosh Mukherjee observed : "Now in the present case, we think it is impossible to say that this Court has, by virtue of the appeal preferred against the order refusing to set aside the ex‑parte decree, acquired any so is in either of the original suit or of the execution proceedings, as it would undoubtedly have done .if an appeal had been preferred either against a preliminary decree in the suit (presumably) because a preliminary decree is not capable of execution or against an order made in the execution proceedings. In our opinion the proceedings based upon the application of the 2nd January, 1904, made with a view to set aside the ex parte decree, are not proceeding in the suit which has terminated by the decree, nor can they be rightly regarded as proceedings in execution of that decree. "Moreover under the Limitation Act once time begins to run it cannot be suspended except under the provisions of the Act. Lala Soni Ram v. Kanhaiya Lal, (1913) L. R. 40 I. A.

74. So here limitation to execute the decree or order 'runs from .the date of the decree or order and it cannot, therefore, be suspended by a proceeding under Or. IX, rule 13 to set aside an ex‑parte decree so long there is no such provision in the Act. I am of opinion, therefore, that a proceeding to set aside an ex‑parte decree in the context cannot be said to be a collateral proceeding in the suit in order to hold that an appeal from that order is an appeal within the meaning of the expression "where there has been an appeal" in clause (2) in column (3) of Article 182.‑ The several columns in Article 182, in my opinion, shall be read together 'and if they are read together then the word "appeal" cannot mean an appeal from the order setting aside an ex Parte decree. The argument of the learned advocate for the appellant then is that the word "review" in clause (3) in column (3) of Article 182 has been used in a generic sense and "review" means and includes an application to set aside an ex parte decree. I am unable to accept this contention of the learned advocate as sound. The provisions for review are provided for in section 114 and in O. XLVII of the Code of Civil Procedure, while the provisions for setting aside an ex parte decree are in Or. IX of the said Code. Again the periods of limitation for review are provided for in Articles 161, 162 or 173 of the Limitation Act according as it is a decree of one Court or another, whereas the period of limitation to set aside an ex‑parte decree is provided for in Article 164 of the Act. The only analogy to be found is that in the case of review or in the case of an application to set aside the ex‑parte decree there is an appeal provided for, if the application for review or to get aside an ex‑parte decree is rejected. The Code of Civil Procedure came into force from the 21st March, 1908, and the Limitation Act from the 7th August, 1908. If the Legislature intended that clause (3) in the 3rd column of Article 182 should also govern a case in which there has been an application to set aside the ex‑parte decree, nothing would have been easier ‑than to say so by incorporating the same in that clause. In view of the fact that the consolidating and amending Code of Civil Procedure and the Limitation Act have come into force from the 21st March and 7th August, 1908, respectively, it cannot be said that the Legislature could not then have contemplated such an omission in the Limitation Act, and so it appears to me that the Legislature has never intended that an "appeal" from an order refusing to set aside an ex‑parte decree will be attracted by the word "appeal" in the expression "where there has been an appeal" in clause (2) of Article

182. Moreover, if ‑one refers to the context or the subject of the legislation enacted in Article 182, it will be clear (to him) that an appeal from an order refusing to set aside an ex‑carte decree does not come within the meaning of the word "appeal" used in clause (2) of column (3) of Article 182, Limitation Act. Since 1871 the point for my consideration has, on a number of occasions, came up before the various High Courts, and until 1927, except in two instances, the decisions uniformly are 'that the word "appeal" in clause (2) of column (3) of Article 182 meant and could only mean, an appeal from the decree or order of which execution was sought. As I have observed already the "broad view" which has found favour with my learned brother Ahmad, J. is that the word "appeal" there includes an appeal from an order rejecting an application to set aside an ex‑parte decree and the learned Advocate for the appellant has endeavoured before me to maintain that view. This "broad view" has become rather prominent in the decisions of the High Courts since the pronouncement of their Lordships of the Judicial Committee of the Privy Council in the case of Nagendra v. Suresh (1932) L. R. 59 I. A.

283. I shall first deal with the decisions which have accepted this "broad view". The earliest decision taking this view is a ‑decision of the Calcutta High Court in Lutful Huq v. Sumbhudin Pattuck, (1881), I. L. R. 8 Cal. 248=10 C. L. R.

143. In that case execution was sought of an ex‑parte decree passed on 7th February, 1876 and application for execution was made on the 31st May, 1876. On the 15th November, 1876, the defendant applied to revive the suit and this application was rejected on the 15th November of that year and an appeal by the judgment‑debtor against this order was dismissed on the 19th December, 1877. When the application for revival of the suit was made, the trial Court ordered the execution of the decree should be stayed and a similar order was made when the appeal against the order of the trial Court dismissing the application was preferred. Section 15 of the Limitation Act, 1877, did not apply to orders of stay made in course of execution proceedings and Court on its own motion struck the execution case off the file on the 21st February, 1877. The second application for execution was filed on the 8th December, 1880. It was contended by the judgment‑debtor that the application was barred by time because it was made more than three years after the date of the decree. Princep, J. in order to prevent a palpable injustice concurred in the view expressed by Morris, J. that the decree 'had been kept open and did not become final until the order of the appellate Court was passed on 19th December, 1877, and the case was met by clause 2, Article 179 of Schedule II of Act XV of 1877. Morris, J. held that the application was not barred because the decree holder applied within 3 years from the removal of injunction. To me it appears that in order to justify the learned judge put on the words contained in clause 2 of Article 179 a construction which they were not intended to and could not bear. The next case cited by the learned Advocate for appellant is Narsing Sewak Singh v. Madho Das and others, (1882) I. L. R. 4 All.

276. The decree was passed on 23rd August, 1873, but on review the original decree was altered on 29th November, 1876. Then on appeal by the plaintiff from the decree passed on review and on a cross objection by the defendant, the decree made on review was set aside by the High Court on the 28th March, 1879. Old field and Broodhurst, JJ. held that time would run from the date of the decree of the High Court, as the final decree of the appellate Court within the meaning of Article 179 (2) Schedule II of the Limitation Act. Their Lordships held that the article made limitation run, where there had been an appeal, from the date of the final decree or order of the appellate Court and "we think the appeal contemplated is an appeal in the suit, not necessarily an appeal from the original decree in the suit." That decision, in my opinion, does not really touch the point before me because that case comes within clause (3) of column (3) of the Article and had been decided on that ground. The observations of their Lordships quoted above are, in my opinion, ibiter dicta. Even this obviously will not suffice because in a suit there may be an appeal from an interlocutory order and it can hardly be contended that where a decree in a suit is obtained before the decision of an appeal from an interlocutory order in the suit, the starting point of limitation would be not the date of the decree but the date of the final order in the appeal. For this reason since the decision in Nagendra's case in 59 I. A. 283, a limitation has been sought to be impos ed upon the word "appeal" an appeal which is capable of affecting the decree ought to be executed in any way. The argument as that in case the appeal tray affect the decree in any way it is imperilled. . There is no reason why the decree holder should be compelled to file an application for execution while the decree is still imperilled and consequently the word "appeal" must be interpreted to mean an appeal not necessarily from the decree or order which is sought to be executed but an appeal from any other decree or order, not necessarily in that suit, which is likely to affect the decree. The words "not necessarily in that suit" used by the learned judges of the Allahabad High Court in the above case would impliedly attract an appeal from an order refusing to set aside an ex‑parte. decree within Article 179 (2) of the Act of 1877 and Article 182 (2) of the Act of 1908. It is sufficient to say that it will always be necessary in such a case to qualify the word "appeal" in some way. But I have already pointed out that such a construction of statute is not, permissible and the Court's function is not to add a "casus omissus" and I have also pointed out the difficulties of taking such a view. The next case taking the" broad view " is Somar Singh v. Deonandan Prasad Singh (1927) I. L. R. 6 Pat.

780. There the preliminary decree was passed on 23rd August, 1921 and the final decree, on 28th October, 1922. In the interval an appeal against the preliminary decree was preferred, which was ultimately dismissed on the 29th October, 1925. The application for execution of the final decree was made on 2nd February, 1926, that is, more than 3 years after the final decree and it was held that, in such circumstances, the application for execution was not barred by limitation and an application for leave to appeal to the Privy Council against that decision was rejected, Kulwant Sahay, J. in delivering the judgment of the Court at page 785 of the report observed : " Clause (2) of Article 182 prescribed ' (where there' has been an appeal) ' the date of the final decree or order of the appellant Court or withdrawal of the appeal." That decision proceeded on the basis of Ashfaq Hussain v. Gouri Sahai (1911) L. R. 33 I. A. 37 but speaking with great respect, I do not think that this decision of the Privy Council has been correctly applied by the learned judges of the Patna High Court. The learned judge goes on to say: " There is nothing here to show that the appeal must be against the decree sought to be executed." In my opinion the intention of the Legislature in making this provision is that if an appeal in any way imperils the decree sought to be executed then the date of the final disposal of the appeal should be the date from which the period of limitation ought to be computed ". In dismissing the application for leave to appeal to the Privy Council, Dawson Miller, C. J. in Somar Singh and others v Devanandan Prasad ' Singh and others, A. I. R. (1928), Pat. 581, observed: It is well‑established that the decree of the trial Court merges in the decree of the appellate Court and the only question is whether it is the preliminary decree that was sough to be executed or the final decree passed in pursuance of the prelimi nary decree in the year 1922. It is further well‑established that the test in such cases is whether the decree of the appellate Court imperils the validity of the decree it is sought to execute. There can be no doubt that the appeal to the High Court from the preliminary decree, had it been successful, would have had the effect of discharging the final decree passed by the trial Court as well as the preliminary decree. It seems to follow, therefore, as a matter of course that the appeal in this case was not only an appeal from the preliminary decree but an appeal from all that naturally followed by the passing of that decree, namely, the final decree for sale which, after all, is merely part of the machinery prescribed for carrying out the direction for sale sustained in the preliminary decree. In these circums tance s it seems to me upon the decided cases and upon the, established principles that there is no substance in the objections taken by the appellant to the decision of this Court ". With the greatest respect, however, I have grave doubt whether the construction put forward by Kulwant Sahay, J. is a construction which the words themselves are capable of bearing. Firstly, it is open to the decree‑holder instead of applying for execution of the final decree, which he has already obtained, to apply for a fresh final decree to be passed, there can be no reason to have resort to an unduly forced construction. Secondly, the observation of Dawson Miller, C. J. quoted above suggests to me that his Lordship was not prepared to give a more' extended meaning to the word" appeal " than was absolutely necessary for the purpose of that particular case. Thirdly, the theory of imperilling the decree on which Kulwant Sahay, J. relies has been impliedly overruled by the Privy Council in Nagendra's case (59 I. A. 283). And lastly, the Full Bench decision of the ` Patna High Court in Rameshwar Prasad Sahu v: Rarmeshwar Prasad Sahu and others, A. I. R. (1951) Pat. I. F. B. has impliedly overruled this decision. The next case is the case of Nagendranath Dey and another v. Suresh Chandra Dey and others (1932) L. R. 59 I. A.

283. The whole argument of the learned Advocate for the appellant is based on this decision and he strongly relies on it and as stated before, the decisions, taking " broad view" have followed this Privy Council case. It is obvious that if the actual decision is looked at, that case does not certainly assist the appellant but it is claimed for the appellant that the observa tions do support his contention. I shall state the facts in that case in some detail. On June, 1913, a preliminary decree was passed in supersession of the decree of the Subordinate judge in terms. of compromise. On June, 4, 1916, Madan Mohan, who was an assignee, applied for a final mortgage decree and he stated in his application that he was an assignee and prayed that an order should be made to that effect. On June, 24, 1920, the‑ Subordi nate Judge disallowed Modan Mohan's claim and a final decree was passed for the sale of the mortgaged properties. The decree was drawn up on August, 2, 1920, but properly dated as of June 24, and in the decree it was declared that the appellants were entitled to payment of Rs. 14,615; 15‑3 out of the proceeds of the sale of the properties. On August, 27, 1920, Madan Mohan presented an application to the High Court 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. Madan Mohan's 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. 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 Woodroffe and Suhrawardy, JJ. objection was taken to the form of the appeal ; Madan Mohan was asked to amend, but this was refused. In the result the appeal was dismissed by the High Court both on the ground of irregularity and upon the merits, on August 24, 1922. On October 3, 1923, the appellants presented an application to the Subordinate judge for execution by sale of the mortgaged properties. This was opposed by some of the judgment‑debtors, the respondents, on the ground that it was barred by Article 182 . Their Lordships of the Privy Council had to consider the question as to whether limitation commenced to run from June 24, 1920, which was the date of the appellate decree. In that case the Subordinate judge held that the application for execution was in time, but the High Court took tie opposite view, and it was in those circumstances that their Lordships of the Privy Council were called upon to determine the question. The dismissal was supported before their Lordships of the Privy Council upon three grounds, namely, (1) that Madan Mohan's 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 182 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. At page 287 of the report their Lordships observed that there was no fore in the first of those contentions. As regards the second, the third contentions their Lordships observed at pages 288 to 289 of the report : " 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 articles : ' where there has been an appeal ' time is to run from the decree of the Appellate Court. 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 of ten 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 June 24, 1920, time only ran against the appellants from August 24, 1922, the date of the Appellate Court's decree. "Their Lordships, therefore, agreeing with the Subordinate judge, reversed the decision of the High Court . It may be observed here that the appeal filed in the High Court was an appeal against the final decree dated June 24th 1920. The objection taken on behalf of the judgment‑debtors were that inasmuch as they were not parties to the appeal and as the whole of the decree was not imperiled, the appeal in the High Court was not a good appeal within the meaning of clause (2) in column (3) of Article 182 of the Limitation Act. It should be noted here further that their Lordships were not specifically dealing with the question, which arises for determination in this case. I may also observe that nobody will dispute the principle that a case is an authority for what it actually decides and certainly not an authority for what logically follows therefrom. It is obvious that if the actual decision is looked at, this case does not certainly assist the appellant. But although that was the situation, the remarks of their Lordships of the Privy Council, which I have quoted above, have greatly influenced the decision of my learned brother Ahmad, J. and have been strongly relied upon by the learned Advocate for the appellant in support of the appeal. I am well aware that even a obiter dictum of their Lordships of the Privy Council would be binding upon the Indian Courts as if it was an actual decision given by their Lordships. It may be stated here that their Lordships of the Privy Council have laid down that the fact that the appeal was incompetent was immaterial for the purpose of construing clause (2) in column (3) of Article 182 of Limitation Act. In the case before their Lordships of the Privy Council, the decree holder sought to rely upon an appeal, which was from the decree which was sought to be executed. That is the main fact which should not be lost sight of. In repelling the three contentions raised before their Lordships of the Privy Council, their Lordships were pleased to observe that they were not concerned with any of these things because the plain meaning of the word "appeal" in Article 182, clause (2), was an appeal without any qualification. Again the word "appeal" there means an appeal against the final decree. It will appear from some decisions that the word "final" in column (3) has been used by antithesis to the expression "interlocutor." it is true that if those observations of their Lordships of the Privy Council are interpreted as if they were the words of a statute disregarding the fact that they were used in a ...................... from the decree sought to be executed and obviously in conscious ness of that fact they can bear the interpretation that there was no imitation placed upon the appeal not even that it should not be from the decree or order sought to be executed. Their Lordships did not say so in so many words that so long as the appeal was from the decree or order sought to be executed, it made no difference what was the character of the appeal and who were the parties to it ; and that was because the appeal before them was an appeal against the decree sought to be executed. Their Lordships repelled the contentions raised before them by saying that there was no qualification in the article to the word "appeal" as would enable the judgment‑debtor to contend successfully that the appeal was not within the purview of clause (2) of Article

182. But that does not make a difference to the word "appeal" in the article necessarily meaning an appeal from the decree or order sought to be executed. It is true that their Lordships made the observations which I have quoted above and which are underlined by me. But their own judgment will show that they were giving a justification for the rule in these words : "whether there be or be not a theoretical justification for the provision in question; their Lord ships think that the words of the article are plain..." The point to remember is that the words in the sentence "It is at least an intelligible rule" were not intended to be a canon for interpretation of Article 182, clause (2) nor do any of the expressions in that judgment lay down a canon. Therefore, merely because their Lordships of the Privy Council in that case held that was an "appeal" within the meaning of Article 182, it cannot be said that they intended to say that the appeals were not confined to appeals from the decree or order sought to be executed ; and, in my opinion, as a matter of fact no possible limitation could be placed upon the appeal comprised in that word except such as would lead to absurd result and would be contrary to the general principle of interpretation of a statute. My learned brother Ahmed, J. has criticised the decision in Haris v. Dines (1946) 50 C. W. N. 667, which has taken a contrary view, that in that case their Lordships of the Calcutta High Court laid emphasis on the fact that their Lordships of the Privy Council directly repelled the third conten tion raised by the judgment‑debtors in the Privy Council, namely, "it must be one in which the ' whole decree was imperiled". It is true that their Lordships have not in express terms said so ; but in dealing with the second and third .contentions together their Lordships have expressed themselves in the words, which I have quoted from pages 288 to 289 of the report in 59 I. A.

283. In my opinion, their Lordships have, at least impliedly, overruled the third contention raised before the Privy Council. So, in my view, no point can be based on that fact alone. The learned Advocate for the appellant then lays great stress upon the observations of their Lordships of the Privy Council : `.`So long as there is any ques tion sub-judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution..." and in arriving at his decision my learned brother Ahmad. J. also lays some stress on that expression in construing Article 182 (2). But, in my opinion, no such justification, however, exists for putting on the word "appeal" the more extended meaning. It is quite obvious that no issue arising in the suit again becomes sub-judice between the parties when an application is made for an ex‑parte decree to be set aside or when an appeal is preferred against an order rejecting such an application. No such issue can become sub-judice unless and until the decree is set aside and the suit is ordered to be restored. If the intention of the Legislature was that when an appeal was preferred against an order refusing to set aside an ex‑parte decree and was unsuccessful, limitation should begin to run from the date of the order of the Appellate Court, it must also have been its intention that, when no appeal was preferred, limitation should begin to run from the date of the order of the trial Court, Thexef6re, reading the facts of this case, the conten tions taken in this appeal and the decision of their Lordships of the Privy Council and considering the arguments advanced by the appellant before me and also the reasons of my learned brother Ahmad, J. I am not satisfied that it was intended by their Lordships of the Privy Council to lay down in Nagendra's case that the word "appeal" in clause (2) column (3) of Article 182 of the Limitation Act referred to or embraced an appeal other than an appeal against the decree or order sought to be executed. The decision in Nagappa Bandappa Kadadi v. Gurushantappa Shankrappa Umarji (1932) I. L. R. 57 Bom. 388=A. I. R. (1933) Bom. 255 was cited by the appellant in support of his contention. In that case there was in the first instance a decree, then an application for review which was granted and then a decree based upon the review. There was an appeal from the original decree and there was also an appeal from the order granting the review, but none from the decree which was ultimately passed upon the granting of the review. The decree‑holder was not$ seeking to execute the decree which was originally passed and there was no appeal from the decree which was sought to be executed. In the result he wanted to take advantage of the provisions of clause (2) of Article 182 but he had to rely upon the appeal from the order granting the review. This contention was negatived by the learned Subordinate Judge from whose decision the appeal was preferred on the ground that the appeal was not from the decree which was sought to be executed. The decision is based on the decision of the Privy Council in Nagendra's case. Moreover the decision in that case is not in a case like the one before, me. That case could be decided and was decided in the special facts of that case and the observations there are obiter dictum. As I have already observed that the general principle laid down there does not, in my opinion, appeal to me and I am of opinion that "appeal" in clause (2) of Article 182 means an appeal from the decree or order sought to be executed and that case has been decided in the peculiar facts, as their Lordships in deciding the case observed at page 395 of the report. The decision in Ghulam Hussain Shah v. Shrimati Radhika Rani (1933) I. L. R. 15 Lah. 267=A. I. R. (1934) Lah. 318 is based entirely on the decision in Nagendra's case. In that case a decree for recovery of costs was passed on 9th November, 1923, in favour of one. R. against the judgment‑debtor. The appeal against the decree was decided on 21st December, 1928, but R. was not made a party to the appeal and question of costs payable to her was not raised in the appeal. The question was whether her application in execution for recovery of costs made on the 10th December 1931, was within time. Bhide, J. held following the decision in Nagendra's case that the application was within limi tation as provided by Article 182 (2) of the Limitation Act. First of all that decision does not give any reasons but simply follows the Privy Council decision in 59 I. A., 283 ; secondly, the question before me was not raised and decided in that case, thirdly, the case was decided on its special facts and lastly, the decision can be supported on the view that the decree appealed from was an appeal from the decree in original suit, and was not an appeal from a separate proceeding, as is the case before me. I may observe here that in a case in which the facts are, as in this case, Bhide, J. took the narrow view. I shall discuss that case later on. The decision in Narayan Gonpat Mahajan v. Radhabai Krishnaji Mahajan (1935) I. L. R. 60 Bom. 83 = A. I. R. (1936) Born. 162 is cited on behalf of the appellant. In that case the decree was passed in 1937 and there was an application for review, which was granted and then there was an appeal which was disposed of by the High Court on the 9th November, 1932. Barlee, J., held that the words in Article 182 (2) of the Limitation Act "decision passed on review" meant a decision passed in review proceedings and whatever such a decision was, it gave a fresh starting point of limitation and in deciding that case the learned judge relied on the decisions in Nagappa v. Guneshantappa (1932) I. L. R. 57 Bom. 388 and in Nagendra v. Suresh (1932) L. R 59 I. A.

283. Besides this decision can be supported in view of the provision in clause (3) of column (3) of Article 182 of Limitation Act. Moreover I have already commented on the said decisions and have held that the said decisions do not apply to the point in controversy before me. The decision in Koya Kutti and others v. Veerankutti, A. I. R. (1937) Mad. 421. is in my view not relevant inasmuch as the question in that case was whether an application for execution of a decree in a mortgage suit would be barred if filed within 3 years from the decree of the appellate Court confirming the preliminary decree or from the date of the final decree. The final decree was dated the 9th November, 1925, while the date of the decree of the appellate Court confirming the preliminary decree was 16th March, 1927 and the application for execution was dated the 15th March, 1930. It was held following the decisions in I. L. R. 8 C. 248 ; I. L. R 4 All. 474, L. R. 59 I. A. 283, I. L. R. 57 Bom. 388 and I. L. R. 6 Pat. 780 that it was not barred by limitation and it was held that " appeal " in clause (2) of Article 182 meant an appeal in the suit which was likely to affect the decree sought to be executed and it was not necessary that the appeal should be from the decree sought to be executed. I have already observed when discussing the decisions on which the learned judge relied, that I cannot accept the views propounded there. Besides the observations in this case can be supported on the principle that there the decree sought to be executed is a decree in the suit ; and moreover the question before me was not decided in that case. My learned brother Ahmad, J., relied very much in arriving at his decision on the observations of Courtney Torrel, C. J., in the case of Firm Dedharaj Laehminarayan v. Bhagwan Das (1937)

1. L. R. 16 Pat. 306=A. I. R. (1937) Pat. 337, which took the broad view and the learned Advocate for the appellant also relied on that decision strongly. The facts in that case are almost similar to those in the present case except in that case the appeal was against an order under O. XLI rule 21, Civil Procedure Code. There it was held that the words " where there has been an appeal" in clause (2) of Article 182 of the Limitation Act do not mean in their strict grammatical construction, that the appeal must be against the decree in the suit, but that they included an appeal against an order made on an application for re‑bearing under O. XLI, rule 21 of the Code of Civil Procedure‑and it was further held that an order on an application for restoration under O. XLI, rule 21, Civil Procedure Code was an order passed on review within clause (3) of Article

18. With great respect of the learned Chief Justice of the Patna High Court; I cannot persuade myself to accept the principle propounded there for the reasons already given and it is not possible for me to hold in view of what I have stated before that a " review " is the same thing as an application for restoration of an appeal under O. XLI, rule 21, Civil Procedure Code or an application for restoration under O. IX, rule 13, Civil Procedure Code. That decision of Courtney Torrel, C. J., based on Nagendra's case was doubted in the Patna High Court, by Fazl Ali, J., in Sheikh Muhammad Naqir and others v. Sheikh Alauddin Ahmad‑ and another (1941)

1. L. R. 20 Pat. 513-A. I. R. (1941) Pat. 213 and the decision of Courtney Torrel, C. J., and James, J., in I. L. R. 1916 Pat. 306 has recently been expressly overruled‑by a Full Bench of that Court in Rameshwar Prasad Sahu v. Parmeshwar Prasad Sahu and others, A. I. R. (1951) Pat. 1 F.‑B. The Madras High Court in Nanduri Sriramchandra Rao v. Chintamanibhatla Venkateswara Rao and others, (1938) I. L. R. (1939) Mad. 252=A. I. R. (1939) Mad. 157‑bas taken the broad view relying mainly on Nagendra's case in 59 I. A. 283 and has held that " appeal" in clause (2) in column (3) of Article 182 means " an appeal" in the suit which is likely to affect the, decree sought to be executed and not merely an appeal against the actual decree or order sought to be executed. The facts in that case are similar to the case before me. There an application made to a Subordinate judge to set aside an ex parte decree passed on the 5th March, 1930 was dismissed by him and against that order of dismissal defendants 1 and 3 to 5. in the suit appealed to, the High Court. On 29th October, 1932 , they ,High Court gave judgment, allowing the appeal and `extending its benefits to defendants 2, h and 7 also on condition that they deposited the decree amount, within three months, but that deposit was not however, made, and so as against defendants 2, 6 and 7 the ex‑,carte decree stood confirmed as 'from 20th October, 1932. On 15th August, 1935 the decree‑holder' filed an application to execute the decree against defendants 2; 6 arid 7 and it was held that the period of three years prescribed by Article 182 of the Limitation Act ‑ran from 20th October, 1932, the date of the appellate decree of the High Court, and not from 5th March, 1930, the date of the ex‑parte decree, and that the application of 15th August 1935 was not barred by limitation. Their Lordships of the Madras High. Court held that the true principles which , should govern this interpre tation were set out in the judgment 'of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey (1932)' L. R. 59 I. A. 283 and by the Patna High Court in Firm Dedharaj Lachmi narayan v. Bhagwan Das (1937)'=I. L. R. 16 Pat. 306 I have already given my reasons for not accepting the view of the Patna High Court in that decision. In a later decision in Madras in A. Veerun Kutti v. P. P. Koya Kutti and others, I. L. R. (1939) Mad. 828 A. I. R. (1939) Mad. 735. the aforesaid view, in Sriram. chandra v. Venkateswara I. L. R. (1939) Mad. 252 has been followed and it has been held, that limitation for execution of the decree will run from the date of the appellate decree in , the appeal from the preliminary decree and not from the date of the final decree. In Thandavaroga Gramani v. Arunmugha Mudali and another, A. I. R. (1945) Mad. 261, Kuppuswami Ayyar, J., in a case similar to the facts of the case before me, held, following the decision in Nagendra's case (59 I. A. 283) that limitation would run from the date of the order of the Appellate Court in the appeal from the order refusing to set aside the ex‑parte decree, no matter even if that appeal was held by the Appellate Court to be incompetent. In my opinion that decision is not correct on principle. In the Calcutta High Court in Shirimati Saraswati Dasi v. Dwarik Mandal, Edgley, J., took the broad view. The facts in brief are that appellant Saraswati got an ex‑parte decree in a title suit and respondent Dwarika's application to set aside the decree was allowed and. Saraswati's suit was subsequently dis missed and then Dwarik obtained an order for restoration on 11th December, 1933. Saraswati continued litigation in various Courts and at last on the 19th August, 1937 her final appeal failed. Dwarik then applied for execution on the 22nd February, 1939 and his Lordship following the decision in Nagendra's case (59

1. A. 283) ,held that the application was not barred by limitation as in his view the language of Article 182 (2) of the Limitation Act was sufficiently wide to include an appeal, the result of which might affect the decree or order which it sought to execute, in such a way as to render the execution proceedings in connection with such decree or order infructuous. I have already observed that I am not satisfied that Article 182 (2) bears such an interpretation. , There are two other cases in which the broad view has been taken recently. In the Bombay High Court Gajendrajodkar, J., sitting singly held in a similar case like the present one that limi tation will run from the date of the order in appeal from the order rejecting an application to set aside the ex‑carte decree following Nagendra's oase (59 I A. 283) and Nagappa's case (57 Bom. 388). See Narmadabai Narayanghet v. Hidayatalli Shahabali, A. I. R. (1949) Born.

115. In Bhimanna and others v. Elhara Basappa A.

1. R. (1950) Hyd. 46, in a different set of facts it was held that the interpretation given by the Privy Council in Nagendra's case (59

1. A. 283) to Article 182 (2) of the Limitation Act (which is in similar language to Article 160 (2) of Hyderabad Limitation Act) is correct on principle. I have already observed that I am unable to accept that interpretation of Article 182 (2) of the Limitation Act. The above are all the decisions of different High Courts that I know of, on the point at issue before me, which have taken the " broad view " of the expression " where there has been an appeal " in clause (2) in column (3) of Article 182 of the Limi tation Act. The preponderance of authority is in favour of the " narrow view " namely, that the word " appeal " in clause (2) in column (3) of Article 182 refers to an appeal from the decree or order sought to be executed. I have already indicated that on principle that is the correct view and that view is in my opinion correct also on principle of interpretation of statute and especially when construing the statute of limitation. A statute like statute of limitation in India should be construed with reference to the context and the subject‑matter. This narrow view has been accepted by the Supreme Court of India and the Nagpur Judicial Commissioners' Court in a case like this. In the Allahabad High Court this " narrow view " has found favour since 1879 except in one instance in Narsing v. Madho Das (1882)

1. L. R. 4 All. 474 but that decision is an obiter dictum. The Bombay High Court since 1892 has taken the narrow view but since the decision of the Privy Council in Nagendra's case (59 I. A. 283) in 1932, has in 3 cases taken the broad view following that case, but in two cases have reverted to the narrow view even after 1932. The Calcutta High Court in Lutful Huq's case (I. L. R. 8 Cal. 248) and after Nagendra's case in Saraswati v. Darika (44 C. W. N. 859) took the broad view, but in a number of other decisions, I shall come to them later, the narrow view has been accepted. There are two decisions of the Lahore High Court ; in the first one in 1929 the narrow view has found favour, while in 1934 the broad view has been taken. I have already pointed out that in 1932 there is an obiter dictum of the Privy Council in a case distinguishable in facts from the present case, which supports the broad view. In the Madras High Court after 1932 there are 3 decisions taking the narrow view, while there are 4 decisions where the broad view has found favour, but those 4 decisions where the broad view has found favour, are mainly based on the Privy Council decision and the decision in 16 Pat. 306 (1937), which has been recently overruled. In the Patna High Court in 1917 the narrow view was accepted, but between 1927 and 1937 there are three decisions favouring the broad view and in 1941 the narrow view was accepted and the Full Bench decision of that Court in September, 1950, has accepted the narrow view as correct on principle. I shall now briefly discuss those cases, taking the narrow view, chronologically. It is interesting to remember that when a decree of a Mofussil Court is reversed, modified or affirmed by the High Court, the decree is a decree of the High Court and such a decree is governed by the 3 years' limitation prescribed by section 20 of the Limitation Act (XIV of 1859). See Ram Churn Bysack and another v. Luckhee Kant Bornick and others (1871) 7 Bengal L. R. 704 F. B. and Kristo Kinkur Roy and another v. Raiah Burrodacant Roy and another (1872) 14 M. I. A. 465 P. C. In fact the earliest decided case on the point that has taken the narrow, view is Sheo Prasad v. Anrudh Singh (1879) I. L. R. 2 All.

273. There an ex‑parte decree was passed on December 2, 1874. The defendant's application to set aside the ex‑parte decree was rejected and the appeal against the order of rejection was dismissed on ‑April 17 1875. The plaintiff decree‑holder applied for execution of the decree on April 12, 1878 in which defendant judgment‑debtor raised the plea that the application was barred by limitation. The Court of first instance held with reference to the provisions of clause 2 of Article 167, Schedule II of the Limitation Act (IX of 1871) that the application for execution was within time as the period would begin to run from the order of the Appellate Court dated the 17th April, 1875, and on appeal by the judgment‑debtor the lower Appellate Court concurred with the view of the Court of first instance. On second appeal Pearson and Spankie, JJ, allowed the appeal holding that the first two clauses of Article 167, Schedule II of Act IX of 1871, allowed three years for the execution of a decree from the date of the decree, or (where there has been an appeal) from the date of the final decree, of the Appellate Court. Their Lordships held " we think it beyond doubt that the words. ' where there has been an appeal' contemplate and mean an appeal from the decree and no other appeal ". In Jivaji v. Ramchandra (1891) I. L. R. 16 Bom. 123, the facts are that plaintiff obtained an ex‑carte decree on March 10, 1886 and the defendant applied to set aside the ex‑fiarte decree on December 23, 1886 and his application was not finally disposed of till March 6, 1887, when his appeal against the order rejecting his application was dismissed. The plaintiff decree‑holder applied for execution of the decree on September 24, 1889 and it was objected that the application was barred by limitation. The High Court held that the application was barred under Article 179, clause (2) of the Limitation Act (XV of 1877) and it was held that the appeal referred to in that clause was an appeal from the decree sought to be executed following Sheo Prasad v. Anurdh Singh (1879) I. L. R. 2 All. 273 and not an appeal from an order of the Court refusing to set it aside and dissented from the view in Lutful Huq v. Sumbhudin (1881) I. L. R. 8 Cal. 248, because the infructuous efforts of the defendant to set aside the plaintiff's decree could not have the effect of extending the period within which the plaintiff was allowed by law to execute it. The facts of that case are similar to those in the case before me. I respect fully agree with that decision and in my view the correct principle in a case like, the present one has been laid down there. In Baikanta. Nath Mittra v. Aghore Nath Bose (1893) I. L. R. 21 Cal. 387, the question arose about the interpretation of clause 2 in column (3) of Article 6 in Schedule III of the Bengal Tenancy Act (VIII of 1885) which runs thus: " where there has been an appeal, the date of the final decree or order of the Appellate Court". These words are exactly similar to those used in clause (2) in column (3) of Article 182 of Limitation Act. In that case an ex‑parte rent decree was passed on 30th May, 1888 and an application to execute the decree was filed on 27th May, 1889 And certain property was attached but on 31st August, 1889 the date fixed for sale, the judgment‑debtor applied to have the ex‑carte decree set aside and the sale was stayed pending that application ; and the application to set aside the decree was rejected on the 28th December, 1889, and this order was confirmed in appeal on the 16th May, 1890. The decree‑holder applied for execution of the decree on the 21st January, 1892 to which the judgment‑debtor raised an objection that the application for execution was barred under Schedule III, Article 6 of the Bengal Tenancy Act, three years having elapsed since the date of the decree. The trial Court disallowed the objection relying on the case of Lutful Huq v. Sumbhudin Pattuck, I. L. R. 8 Cal. 248, and holding that the order of 16th May, 1890 dismissing the appeal against the order rejecting the application to set aside the ex parte decree was the final decree within the meaning of the article referred to. On appeal to the High Court it was held by Beverley, J. (with whom Petheran, C. J. concurred) that the execution of the decree was barred as no application was made within three years from the date of the decree of 30th May, 1888 observing " we are also of opinion that the " final decree " mentioned in that article must be the final decree in the suit and cannot be held to include an order in appeal upon an application to set aside that decree under section 108 of the Code (O. IX rule 13 in the Code of Civil Procedure, 1908)." This accords with my view. In 1917 the Patna High Court in the case of Roy Brijraj v. Nauratan Lal, (1917) 3 Pat. L. J. 119=A. I. R. (1917) Pat. 157, Chamier, C. J. relying on Baikanta Nath Mittra v. Aughore Nath Bose, (18931 I. L. R. 21 Cal. 387, and dissenting from Lutful Huq v. Sumbhudin Pattuck, (1881) I. L. R. 8 Cal. 248, had held that the words " where there has been an appeal " in clause 2 of Article 182 of the Limitation Act meant where there had been an appeal against the decree sought to be executed and did not include an appeal against an order made on an application to set aside that decree. My learned brother Ibrahim, J. relied on this decision in support of his judgment. I may only add that the facts of that case are on all fours with the facts of the present case before me, and in my opinion that decision lays down the correct principle and I need only content myself with stating that the Patna High Court in Muhammad Naquir v. Alauddin Ahmad, I. L. R. 20 Pat. 513-A. I. R. (1941) Pat. 213, approved of the said decision and in the very recent Full Bench decision of that Court in Rameshwar Prasad Sahu v. Paramswar Prasad Sahu and others, A. I. R. (1951) Pat. 1 F. B. it has been held that Brijraj v. Nauratan Lal, 3 Pat. L. J. 119 was rightly decided and that Firm Dedhraj Lachminarayan v. Bhagwan Das (1937) I. L. R. 16 Pat. 306 was not good law and it was overruled. A case similar to the present one came up for consideration in Judicial Commissioners' Court at Nagpur in 1922 in Jabarkhan and others v. Rahim Khan, A. I. R. (1922) Nag.

197. The plaintiffs suit was dismissed on the 7th May, 1913 and on appeal the dismissal was set aside, and after retrial an ex‑parte decree for possession was passed on the 25th March, 1916. The defendant applied to get the ex‑carte decree set aside and after two Courts had in turn declined to entertain the application, the Appellate Court on the 4th May, 1947 directed one of them to do so, put the defendant failed to appear and the application to set aside the ex‑carte decree was rejected on 20th July, 1917. The decree‑holder applied on the 20th June, 1.920 to execute the decree dated the 25th March, 1916 an the first Court entertained the application while the first Appellate Court dismissed the application for execution as having been made more than three years from the date of the decree. The decree‑holder then preferred an appeal in the Judicial Commissioners' Court and that appeal was allowed overruling the respondent's contention and holding " The words `where there has been an appeal' of clause (2) of the articles contemplate and mean an appeal from the decree or order sought to be executed and do not include an appeal from an order dismissing an application to set aside an ex‑carte decree ". The case of Lutf ul Huq was not followed. In my opinion the correct principle has been laid down in that' case. The next decision in which the narrow view has been accepted is in the case of Fakir Chand Mandal v. Daiba Charan Parni, (1927) I. L. R. 54 Cal. 1052.‑ The material facts in that case are that the plaintiff respondent brought a suit against the two defendants appellants and a third party and obtained an ex‑parte decree on the 2nd March, 1922 but no appeal was taken against that decree. On the 27th March, 1922 the judgment debtor other than the appellants applied under Or. IX, rule 13 of the Code of Civil Procedure for an. order setting aside the ex parte decree and that application was dismissed on the 9th September, 1922 and an appeal against the last order was also dismissed on the 29th January, 1923 On the 27th March, 1925 the respondent decree‑holder applied for execution of the decree against all the three defendants but that application for execution having been presented more than three years after the decree was passed, was barred by limitation but it was contended by the decree‑holder that as the application of the judgment‑debtor to set aside tie ex‑parte decree was not finally dismissed until the 29th January, 1923, the terminus a quo for limitation was the date of that final order and hence the application for execution was within time. Page, J. (with whom Graham, J. concurred) at pages 1055‑1056 observed " it is now well‑established that, there an appeal has been preferred from a decree, the period of limitation commences from the date of the decree on appeal.

But what is meant by " decree on appeal" ? In my opinion to that question there can be but one answer. It means' decree on appeal from the decree to obtain execution of which the applica tion is made'. Now, can it reasonably 'be contended that the decree of the 29th of January 1923 was passed on appeal from the decree to execute which the application was made Clearly not. The appeal which the respondent prays in aid in support of his application for execution was not from the decree passed in the suit, but from an order refusing to set aside that decree under O. IX, rule

13. In my opinion the matter is clear on principle. But it is also, I think concluded by authority. See Jivaji v. Ram Chandra (1891) I. L. R. 16 B. 123, Baikanta Nath Mittra v. Aughore Nath Bose, (1893) I. L, R. 21 Cal. 387, Rai Brijraj v. Nauratan Lal (1917) 3 Pat. L. J. 119." Then referring to the case of Lutful Huq v. Sumbhudin Pattuck. (1881) I. L. R. 8 Cal. 248, Page, J. observed. " In my opinion, the case of Lutful Huq v. Sumbhudin Pattuck was wrongly decided, and cannot now be regarded at law." My learned brother Ahmad, J. quoting the last mentioned passage observed. " This decision with which Mr. Justice Graham agreed can hardly be taken as a decision on the interpretation of the actual language used in article 182 of the Limitation Act * *. In view of the expression that Mr. Justice Page was interpreting in this case, I do not think this case is an authority in support of the narrower interpretation of clause 2 of article 182 of the Limitation Act." MY learned brother Ahmad, J. has rightly observed that Page, J. went out of his way to declare that the case of Lutful Huq v. Sumbhudin Pattuck was wrongly decided and could not be regarded as good law. But with very great respect to my learned brother I am unable to agree with him when he observes that Page, J. did not decide the point that arises for our consideration in this case. If one reads the facts of the case before Page, J. and considers the question for decision in that case, he will find that that decision has actually been on the question that arises for determination in the present case. Simply because Page, J. has used the expression " decree on appeal " and not the expression " when there has been an appeal " as appears in clause (2) of article 182 of Limitation Act, it can hardly be said that he was not interpreting clause (2) of Article

182. As I have already indicated, the narrow interpretation, which has found favour with Page and Graham, JJ. in that case, is correct on principle and is sound in law. In the case of Mulkh Rai and others v. Guruditta Shah Hari Gand, A. I. R. (1929) Lahore 283, Bhide, J. took the narrow view. In that case the plaintiff firm obtained an ex‑parte decree against Balmokand and others on 18th October, 1921. An applica tion to set aside the ex‑carte decree was rejected on the 16th November, 1922 and an appeal from that order was dismissed on the 5th November, 1923. An application to execute the decree filed in May, 1922 but the case was struck o9' the file on the 21st November, 1922. The next application to execute the decree was made on 2nd November, 1926. This application was dismissed by the Court of first instance as barred‑by limitation but on appeal by the decree‑holder the learned District judge relying on Lutful Hu5 v. Sambhudin Pattuck, I. L. R. 8 C. 248, held that the application was not barred by limitation. The judgment‑debtors then filed an application for review which was granted by the District judge holding that the authority relied on by him (I. L. R. 8 Cal. 248) had been subsequently held to be not good law and an appeal from that order to the High Court was allowed on a point of law. The judgment‑debtors then filed a second appeal to the High Court from the first order of the District judge on the 26th March, 1928 and the High Court granted an extension of time under section 5 of the Limitation Act. Then on the merits Bhide,]. has held that the context in which the word " appeal " is used in the third column of article 182 leaves no doubt that the appeal referred to is an appeal from the decree itself and not from an order rejecting an application to set aside the ex‑carte decree. This decision supports the narrow view and I am of opinion that this is correct on principle. After Nagendra's case Bhide, J. took the broad view in I. L. R. 16 Lahore 267, which I have already noticed. The next decision taking the narrow view is in the case of Prafulla Kumar Basu v. Shrimate Sarojbala Basu and other, (1920) 35 C. ‑W. N.

155. In that case the date of the decree was 22nd November, 1922. In December, 1922 the defendant No. 4 (who was the decree‑holder according to an award) applied under O. IX; rule 13, Code of Civil Procedure to set aside the ex‑parte decree but this application was dismissed in 1923 and an appeal from that order was dismissed on the 28th July, 1926. Then the lady decree‑holder, filed an application for execution on the 16th January, 1928 and it was contended that the application for execution was within time by reason of the provision in the second clause of Article 182 of the Limitation Act. Rankin, C. J. (with whom C. C. Ghose, J. concurred) held following Jivaji v. Ram Chandra I. L. R. 16 Born. 123 and Fakir Chand v. Daiba Charan, I. L. R. 54 Cal. 1052, that the application for execution was barred by limitation and observed "It is quite true that the phrase is merely `where there has been an appeal'. * * *, Where there is an application to set aside a decree and restore a suit, that application may occupy a substantial period of time for its determination ; exactly the same, if somebody brings a suit to set aside a decree on the ground of fraud. It may take more than a year to get that matter determined. But it is a mere accident that there should be an appeal in either case from the order of the Court of first instance and it seems to me to be quite impossible to say that the second clause of Article 182 is intended to cover an appeal from an order refusing to set aside a decree. In my judgment that contention is entirely unfounded." I respectfully agree with that decision and in my opinion that decision decides the point before me. My learned brother Ahmad, J. only mentions this decision because in his view the broad view has been followed since the decision in Nagendra's case (59 I. A. 283). The Allahabad High Court in the case of Sukhanandan Singh v. Mst. Ramdeyi Kunwwr and others, A. I. R. (1932) All. 601 took the narrow view. In that case there was an ex‑parte final decree in a mortgage suit on 5th March, 1.929. The application of the judgment‑debtor to set aside the ex‑parte decree was rejected on the 30th March, 1926 and the appeal against that order was dismissed on the 24th May, 1926. The application for execution was filed on the 21st March, 1929. In that case Pullan, J. (with whom Niamatullah, J. concurred) observed " In the present case there was no appeal against the final decree and it has been ruled by this Court as far back as 1879 in the case of Sheo Prasad v. Anarudh Singh, I. L. R. 2 All. 273, that the words "where there has been an appeal" contemplate and mean an appeal from the decree and no other appeal" and their Lordships followed Jivaji v. Ramchandra (1892) I. L. R. 16 Born. 123, Ray Brijraj v. Nauratan Lal (1917) 3 Pat. L. J. 119 and Fakirchand v. Daiba Charan (1927) I. L. R. 54 Cal. 1052. In that case their Lordships repelled the contention that the proceedings taken for setting aside the ex‑carte decree should be held to be proceedings for a review of judgment in the following words: "But although there is an analogy between an application for setting aside an ex‑Parte decree and an application for review, we are of opinion that in Article 182 of Limitation Act, the words "review of judgment" must be applied strictly to a review of judgment, as the words are used in other portions of the same schedule" I am in entire agreement with this decision. The Madras High Court took the narrow view, not exactly on facts similar to the case before me, in the case of Karaveepil Ahammad Kuty and others v. Kottakat Kuttu (1932) I. L. R. 56 .Mad.

458. In that case a preliminary decree for partition was passed on the 8th April, 1918 and that decree was confirmed in appeal on 31st March, 1919 by the first Appellate Court and on the 20th March, 1923 by the High Court. On the 18th April, 1918 the plaintiff applied for a final decree and the final decree was drawn up only on the 14th December, 1924 but as the decree must bear the date on which the judgment was pronounced, the decree that was drawn up in 1924 bore the date 30th September, 1919. The petition for execution was filed on 24th March, 1925, which was clearly beyond three years after the date of the final decree. Madhavan Nair, J. observed "that it is wrong to interpret clause (1) of Article 18 by ignoring the context and there can be no doubt that under clause (1) the period for execution of a decree is three years `from the date of the decree or order' and this clearly means from the date of the decree or order that is sought to be executed. Then comes clause (2) which states (where there has been an appeal) the date of the final decree or order Appeal from what decree or order ? Surely appeal from the decree or order sought to be executed. This seems to me to `be the only interpretation possible having regard to the context in which the clause stands". In my opinion that is the true interpretation of clause (.2) of Article 182 of the Limitation Act, having regard to its context. This narrow view has been accepted by the Bombay High. Court in the case of D.

161. Jacinto and another v. J. D., .B Fernandex, A.L.R. (1939) Bom.'

454. The facts‑ in that case though not similar to the fact's `of `the case before me, the principle laid down applies to this case. "In 1924,'there 'was 'a suit for parti tion for immovable property, part of 'it being house property and part of it being property subject to assessment to "Government, revenue. Those two classes of property' had to be dealt with respectively under subsection (2) and subsection (I)`of Or. XX, rule '18, Civil Procedure Code., Accordingly on '27th May, 1925, an order partitioning the property between the plaintiff and defendants was duly made and 3t was directed that the plaintiff would be' put in possession and it was then directed that the partition of the lands assessed the Government ''revenue would be effected ' by the Collector and that of the house property by the Court. As to 'the house property, final decree was passed on the 2nd April; 1930 and an appeal from 'the final decree' was disposed of' ' on 16th January, 1931. Then on 9th January; 1934 an application for execution of the decree 'relating to `the' property assessed to Government revenue was made and the point taken was that the application was barred under Article 182 of Limitation Act. Both the Courts below held that the application was within time holding that the decree of 1930 and of 1925 were parts of the same decree and although the appeal related to house property only, which was only dealt with by the decree of 1930, it was not necessary that the appeal should be from the whole of decree. Beaumont, C. J. (with whom Wadia, J. concurred) overruled the decision of the Courts below holding " There are here two decrees: 'The decree of 1930 is a final decree relating only to the house property, and, in. my opinion, the filing of an appeal against that decree can have no application whatsoever to the period of limitation applicable to the execution of the decree of 1925. It is perfectly plain on the language of Article, 182 that the words " where there has been an appeal in the last column, mean an appeal from. the decree sought to be executed, and not an appeal from another decree, though made in the suit ". , This interpretation of clause (2) At Article 182 of the Limitation is in accord with my view. In the Madras High Court in the case of Tharkam Kojiniyakath Moidin Kutti v. K. N. Subramanya Iyer, A. I. R. (1939) Mad. 892 where the question arose if a decree could be treated as having been suspended during the pendency of an application to set aside the satisfaction order and the appeal there from, Wadsworth, J. observed, " It is arguable as a matter of pure logic that when you are seeking to get a decree, you are not obliged to execute that decree until the scope and extent of that decree have been finally determined in appeal. Unfortunately for the respondent, however, question of limitation cannot be determined by pure logic and any exceptions from the general rules laid down in the schedules to the Limitation Act must be brought within the four walls of the statute. It is, I think, definitely established that clause (2) of Article 182 has no applica tion to appeals other than appeals against the decree itself. Its scope extended to cover an appeal against a preliminary decree in a mortgage suit when there is an executable final decree which is liable to be modified in the light of that appeal. I am not aware of any authority for extending the scope of Article. 182, clause (2) to appeals from orders in collateral proceedings which may affect the decree to be executed." I respectfully agree with the principle laid down in, that decision. In Sheikh Muhammad Naquir and others v. Sheikh Alauddin Ahaniad and 'others (1940)

1. L. R. 20 Pat. 513=A. I. R. (1941) Pat. 213, Fazl Ali, J. (with whom Rowland' J. concurred) doubt ed 'the decision in Firth Dedhraj hachminarayan v. Bhagwan Das (1937) I. L. R. 16 Pat.

306. In that case plaintiffs suit was dis missed with' costs and his first appeal was also dismissed with costs and his second 'appeal also was dismissed with costs for non pay ment of talabana. Thereupon he filed an application for restoration of the second appeal, which was also dismissed. The respondents 'sought to compute the period of limitation for the execution of the decree for costs of the suit and the appeals from the date of dismissal of the plaintiff's application for restoration of the second appeal and that contention was overruled and it was held that the appli cation for restoration of second appeal must be treated as an appli cation for review and "Review of judgment" in Article 182 (3) could not be construed to mean application or proceedings for review of judgment but meant only where' the review had been allowed. This decision lends support to the narrow view, I am taking. The exact scope and effect of the judgment of Sir Dinshah Mulla have been the subject of elaborate discussion in the latest case of the Calcutta High Court in Haris Chandra Choudhury v. Dinesh Chandra Choudhury and another (1946) 50 C. W. N.

667. The facts in that case are that a preliminary decree for partition between the parties was passed on the 3rd April; 1938 and it was made final on the 13th August following on the basis of a compro mise. On the 11th November, 1935 defendant No. 5 presented an application for setting aside the compromise decree under O. IX, Rule 13. as well as under section 151 of the Code of Civil Procedure but that application having been dismissed by the trial the trial Court on the 6th October, 1939 an appeal was filed in the Calcutta High Court as also an application under section 115 Civil Procedure Code upon which a rule was issued and both the said appeal and rule ware dismissed by the High Court on the 23rd July, 1943. Pending those proceedings the decree‑holders filed an application for execution of the decree for costs only in December, 1939 but this proceeding was struck of for non‑prosecution on the 4th July, 1940. Thereafter on the 20th December, 1943 the decree‑holders filed an application praying for delivery of possession in terms of the final decree. The judgment‑debtor filed an objection stating that the application was barred. The trial Court overruled the objection amongst others on the ground that under Article 182 (2) of the Limitation Act time would run from the 23rd July, 1943, when the final order in appeal was made by the High Court. B. K. Mukherjee, J. (with whom Sharpe, J. concurred) considering and explaining Nagendra Nath Dey v. Suresh Chandra Dey (1932) L. R. 59 I. A. 283 and following Fakir Chand v. Saroj bale (1930) 35 C. W. N. 155 and dissenting from Firm Dedhraj v. Bhagwan Das (1937) I. L. R. 16 Pat. 306 and Sriramchandra v. Chinta mani Bhatla, I. L. R. (1939) Mad. 252. and refer in to Lutful Huq v. Sumbhudin Pattuck (1881) I: L. R. 8 Cal. 248, has held that the words "final decree or order of the appellate Court where there has been appeal" in Article 182 (2) of the Limitation Act, mean the final decree or order passed on appeal from the decree which is sought to be executed. B. K. Mukherjee. J. preferred to follow the decisions in Fakir Chand v. Daiba Charan (54 C. 1052) and Prafulla v. Sarojbala (35 C. W. N. 155) than to follow the dec ision in Lutful Huq's case (8 Cal. 248). Regarding Nagendra's case (59

1. A. 283) Mukherjee, J. observed. "In our opinion, this decision is no authority for the proposition that the appeal contemplated by Article 182 (2) of the Limitation Act need not be directed against the decree which is the subject matter of execution or a portion of it and it is enough if there was an appeal from an order passed in a separate of independent proceeding the result of which might effect the decree hi any event. The doctrine of imperiling the decree upon which the decision of the judges of this Court rested was expressly reversed by their Lordships of the Judicial Committee .. in the case before the judicial Committee the appeal preferred by the plaintiff was against the final decree in the mortgage suit , Their Lordships definitely held that whether or not the appeal imperilled the decree was irrelevant to the enquiry and the only thing material was whether there was in fact an appeal no matter whether it was defective in form and of a partial or fragmentary character If the appeal was preferred against the amended decree undoubtedly the decree‑holders could invoke the provisions of clause (2) of Article 182 of the Indian Limitation Act, as a "decree" would include an amended decree as well but if there was no appeal from the amended decree it is difficult to say how the period of limitation would be enlarged by an appeal from any order passed in the course of the, suit. If that is the position, limitation could also be extended by an appeal taken against a subsequent decree which might be passed in a suit to set aside the original decree, which is sought to be executed. In our opinion a broad proposition like this cannot be inferred either from the actual decision of their Lordships of the Judicial Committee in Nagendra v. Suresh (59 I. A. 283) or from the observations made by their Lordships in the course of the judgment The word "appeal" in clause (2) is wide enough to include an appeal from an amended decree . The appeal against the preliminary decree is in substance, though not in form appeal against the final decree also and the final decree has got no existence apart from the preliminary decree". My learned brother Ahamad, J. has rightly pointed out, if I may say with respect, that 'Mukherjee J. was not right in saying that the doctrine of imperilling the decree had been expressedly reversed by their Lordships of the Privy Council. But with great respect I am unable to agree with my learned brother when he observes that the doctrine was not reversed by implication by their Lordships of the Judicial Committee. Their Lordships have held that whether or not the appeal imperilled the decree was irrelevant to the enquiry and that is also the view of Mukherjee, J. in the above case. My learned brother Ahmad J. has observed that "Mukherjee. J. has conceded that an appeal which in substance, though not in form is an appeal against the decree as contemplated in article 182". But with great respect to my learned brother I am unable to take this view because that observation was made to meet an argument raised before Mukherjee J. by the learned Advo cate for the respondent, and the decision of Mukharjee J. is definite on the point that the word "appeal" in clause (2) of Article 182 of the Limitation Act does not contemplate an appeal from an order refusing td set aside an ex‑carte' decree. In my opinion the decision of Mukherjee J. is correct on principle and the rule laid down there is good law and governs the case before me. The Bombay High Court in the case of Mahadeo Bhimsankaor Madhave and another v. Katu Miaya Valed Hussain (1947) I. L. R. (1948) Bom. 521 in a case where the preliminary mortgage decree was obtained on 27th June, 1933 and an appeal was preferred by the judgment debtor but he died after filing of the appeal, and on the 26th November, 1935 the appellate Court made an order declaring the appeal to have abated and the preliminary decree was made final on the 7th March, 1935 and on the 30th March, 1935, the plaintiff applied to execute the final decree and that appli cation was disposed of on the 14th September, .1935, the assignee of the decree‑holder applied for execution of the decree on the 16th November, 1938‑. The judgment‑debtor's heirs contended that the application was barred by limitation while the assignee relying on article 182 (2) of the Limitation Act argued that it was not barred as the application had been filed within 3 years from the 16th November, 1935, the date on which the Court declared that the appeal from the preliminary decree had abated. It has been held that as there was no appeal from the final decree, which was the decree sought to be executed, time should be computed from the date of the final decree and it was barred by limitation. It has beep laid down there on a review of the decided cases and following, Jivaji v. Ram Chandra (1891) 16 B. 123: Jacinto v. Fernandes A.I R. (1939) Bom. 454; Ahammad Kutty v. Kotta Khat Kuttu (1932) I. L. R. 56 M. 458 and Fakir Chand v. Daiba Charun 54: Cal, 1052 and distinguishing Nagendra Nath v. Suresh Chandra (1932) 59 I. A. 283, that the word "appeal" in Article 182 (2) of the Limitation Act means an appeal from the decree or order sought to be executed and not an appeal which is likely to affect the decree sought to be executed. Though the facts in that case are not exactly similar to those in the case before me, I respectfully agree with the principle laid down there. In March, 1949, the Supreme Court of India has takers the narrow view in Bhawanipore Pznking Corporation Ltd. v. Gouri Shankar Sharma (1950) S. C. R. (C. W. N. Supplement) 173 A. I. R. (1950) S. C. 6, when interpreting clauses (2) and (3) in column (3) of article 182 of the Limitation Act. In that case a preliminary mortgage decree was passed ex‑parte 'on the 21st February, 1940. The judgment‑debtor on the 19th September, 1949 filed an application under O. IX, rule .13 of the Civil Proce dure Code to set aside the ex‑parte decree and that application was rejected on the ‑7th June, 1941. Then on the '11th July, 1941, the judgment‑debtor filed an application under section 36 of the Bengal Money Lenders Act for re‑opening the preliminary decree, which was dismissed for default of appearance on 20th December, 1941 and final decree was thereafter passed on the 22nd December, 1941. Then the judgment‑debtor made an application under O. IX, rule 9 of the Code of Civil Procedure for restoration of the proceedings under section 36 of the Bengal Money Lenders Act but this application was, however, dismissed on the 1st June, 1992 on the ground that there was no sufficient cause shown and also on the ground that no useful purpose would be served by re‑opening the preliminary decree after the final decree had been passed. The judgment‑debtor's appeal against that order to the Calcutta High Court was dismissed for non‑prosecution on the 3rd July, 1941. On the 9th April, 1945 the decree‑holder applied for execution of the decree but it was dismissed for default on the 11th May, 1945. Then on the 2nd June, 1945, an application for I execution was filed and the question was if that application was within time. That application was clearly time‑barred unless it came within either clause (2) or (3) of Article 182 of the Limitation Act. It has been held that the case is not covered by clause (3) and in dealing with the contention of the appellant that the case would be covered by clause (2) of Article 182 on the ground, that even though no appeal bad been preferred from the final mortgage decree, the words " where there has been appeal " were comprehen sive enough to include the appeal from the order dismissing the application under O. IX, rule 9 of the Civil Procedure Code made in connection with the proceedings under section 36 of the Bengal Money Lenders Act, Fazl Ali, J. in delivering the judgment of the Court has observed . "This argument also is a highly far fetched one, because the expression where there has been an appeal' must be read with the words in column (1) of Article 182, viz., ` for the execution of decree or order of any Civil Court ', and however broadly we may construe it, it cannot, be held to cover an appeal from an order which is passed in a collateral proceeding ". I respectfully concur in the reasoning in that decision‑and I may add that Fazl Ali, J. negatived the argu ment which commenced itself to Courtney Terrel, C. J. in I L R.16 Pat. 306 and affirmed the' series of decisions, which commended itself to my learned brother Ibrahim J. but which my learned brothel Ahmad, J. had taken to have been impliedly overruled by the decision in Nagendra v. Suresh (59 I. A. 283). In the Allahabad High Court in December' 1949 in the Ease of Kunwar Bahadur Singh v. Sheo Shankar A. I. R: (1950) All. 327 Seth J. (with whom Wanchoo, J. concurred has held that an appeal against an order refusing to set aside an ex‑parte decree is not an appeal contemplated by Article 182 (2) of am ex Parte decree is not an appeal contemplated by Article 182 (2) of the Limitation Act and so the application for execution was barred by limitation, in which case the facts are on all fours as in the case before me. In that case the exact scope and effect of the judgment of Sir Dinshah Mulla in Nagendra v. Suresh, (59 I. A. 283) have been subject of elaborate discussion and decision ; and it will serve no useful purpose for me to repeat what has been said there and I shall content myself by saying that I respectfully concur in the reasonings contained in the judgment of Seth, J. in that case. The next decision in order of time taking the narrow view " is of Raghava Rao, J. of the Madras High Court "in Ramkrishna Naidu v. Srinivasalu Naidu, A. I. R. (1950) Mad. 552, where his Lordship has observed that there can be no suspension of time which has once begun to run except under the heads of deduction specifically recognised and provided for by the statute; and it has been held that an application for review cannot arrest the running of time bringing the case within clause (3) of article 182 thereby not following Firm Dedhraj v. Bhagwan Das (I. L. R. 16 Pat. 306) and that an application under Or. IX, rule, 13, Civil Procedure Code is not an application for review within the meaning of clause (3) of Article 182 and an order thereon does riot give a fresh start of limitation. The latest decision in which the " narrow view " of clause of Article 182 of Limitation Act, which is in accord with a view and that of my learned brother Ibrahim, J. has been taken the Full Bench decision of the Patna High Court on the 22nd September, 1950 in Rameshwar Prasad Sahu v. Parmeshwar Prasad Sahu, A. I. R. (1951) Pat. F. B., in which the case of Firm Dedhraj v. Bhagwan Das (1937) I. L. R. 16 Pat. 306 has been overruled and the decision in Bhawanipur Banking Corpora tion Ltd. v. Gauri Shankar Sharma (1950) S. C. R. (C. W. N. Supp.) 173 = A. I. R. (1950) S. C. 6 has been relied on and the decisions in Roy Brijraj v. Nauratan Lal (1917) 3 Pat. L. J. 119 and other cases taking the " narrow view" have been approved, in a case where the facts are exactly similar to the facts of the case before me. I respectfully agree with the view taken in that latest decision. I have already indicated that reading clause (2) along with clause (1) grammatically and considering the whole expression'" the date of the decree or order, or where there has‑been appeal, the date of the final decree or order of the appellate Court", I under stand and hold that the word " appeal " mentioned in clause (2) in column (3) of Article 182 of the Limitation Act, 1908, refers to an appeal from the decree or order sought to be executed, and to no other appeal, and it does not include an ,appeal from a collateral proceeding, such as an appeal from an order refusing to set aside an ex‑parte decree, and I further hold that limitation for an application to execute the decree or order runs from the date of the decree or order‑sought to be executed. I am enabled to express this view of mine with added confidence, because I find that other learned Judges of different Courts; also, who have tried together the meaning of this clause only from the language used by the Legislature, have arrived at the same conclusion. A review of the aforesaid decisions, to which I have referred above will show that the preponderance of authorities is in favour of the view, I am accepting in this case. Considering the matter in all its aspects, I am in agreement with Ibrahim, J. and not with Ahmad, J. thought for his opinion I have almost respect; and I order that this appeal shall lie dismis sed. The parties will bear their own costs throughout. A.H. Appeal dismissed