P L D 1964 Supreme Court 520 (PLP)

The learned Judge in that case also pointed out that in a subsequent ruling, the Privy Council in Chandra Mani Saha v. Anarjan Bibi (LR 61 I A 248) had held with reference to Article 180 in the Second Schedule to the Limitation Act, that the starting point for limitation for an application by an auction‑purchaser of immovable property, for delivery of possession, should be the date of the appellate order and not the date of the original order by which objections against the confirmation of the sale were rejected, under Order XXI, rule 92 of the Code of Civil Procedure. This was in spite of the fact that the limitation for such an application was prescribed to start from a date when the sale became absolute and, in terms, rule 92 of Order XXI of the Civil Procedure Code laid down that the executing Court had to confirm the sale if the objections were rejected and thereupon "the sale shall become absolute". It would, therefore, seem that the true rule is that it might depend on the circumstances of each case as to when an order should be regarded as having become, absolute and final. Certain other cases were also cited by Mr. Ghias Muhammad before us, but they do not deal directly with the point at issue and therefore need not be discussed. Mr. Ghias Muhammad, however, pressed on our attention the proposition that the suit should be brought when the right to sue first accrues, unless it is a case of a continuing wrong within the meaning of section 23 of the Limitation Act. This proposition need not be objected to, so far as it goes. The question, however, would always arise whether the very firs denial of a right should be held to oblige a person whose right had been invaded or on whose title a cloud had been cast, to go to Court at once. It may be that ‑a right to sue may accrue o K the first denial and yet in the particular circumstances of a case, the option may rest with the person concerned to wait till the denial of right acquires finality by some subsequent develop ments. Even if it be accepted that departmental proceedings cannot be assimilated to the position of judicial proceedings in Courts, it does not follow that the order passed by the original authority in such proceedings must necessarily and exclusively be regarded as the starting point for limitation under Art. 120 of the Second Schedule to the Limitation Act. It would be a highly incon venient state of the law if that proposition were to be accepted as an inflexible rule. The doctrine of merger may also not apply to departmental orders as it does to judicial orders. It may further be conceded that the filing of an appeal does not by itself suspend the operation of the original order and that limitation when it has once started to run, cannot be arrested in its course. But the question is whether the State servant concerned must resort to a legal remedy in the civil Courts as soon as the firs departmental authority passes an order to his prejudice. Has he no option to wait till the matter is finalized after an appeal o revision to the higher authorities? If the view that found favour with the High Court were to prevail, the practical result may b that in every case, an aggrieved State servant would be obliged to go to Court with the passing of the very first departmental order against him. As, however, a declaratory suit of this type is governed by the discretionary powers vested in the Court, under section 42 of the Specific Relief Act, the Court may stay proceed ings and direct the plaintiff to first exhaust his departmental remedies. Eventually, the aggrieved person may obtain redress in departmental appeal and the filing of the plaint in Court would then become a vain procedure, involving as it does, unnecessary expense. If, however, the suit is allowed to proceed, it would, in practice, mean that the provisions regarding further departmental means of redress would become a dead letter. A construction which leads to such results should, if possible, be avoided. It is not possible to arrive at a construction of the expression "when the cause of action arose", such as would be consistent with the preservation of the departmental remedies? I think the answer should be in the affirmative, not only because of the argument ab inconvenient but also in view of the constitutional rights guaranteed to a servant of the State. At the relevant time, the constitutional position was governed by the Government of India Act, 1935. By section 241 of that Act, it is provided that the rules which are to govern conditions of service of persons holding civil posts under the State, must include a provision for at least one appeal, against an order which, inter alia, terminates the appointment of a civil servant, otherwise than upon his reaching the age fixed for superannuation, unless the order in question be one passed by the Governor‑General or a Governor. This right of appeal therefore is guaranteed by the Constitution to the holder of a civil post and that is why the various departmental rules incorporate provision for such appeals. To hold, therefore, that the very first order of removal by a departmental officer should oblige the person concerned to go for redress to the civil Courts, would mean, in effect, depriving him of a constitutional privilege. I do not see why the State servant, in the circumstances, should not regard the first denial of his right as only tentative, on the ground that it is open to review by the higher authority. He might, if he chose, treat it as a final order and go to Court, but he is not compelled to do so. On the contrary, he has the constitutional right to say "I shall not treat it as an absolute and final denial of my right to stay in State service but shall have the matter considered in a higher forum first". If the appellate order also goes against him, he might then consider it as an absolute denial of his title giving him the final cause of action for a suit. If the matter is looked at from this point of view, there should be no difficulty in holding that the date, when the cause of action arose, coincides with the point of time when the departmental proceedings finally end. The affirmation by the. superior authority of the original order should not be regarded as a mere repetition of the firs denial of the right or title. The scheme of the departmental rules, read in the light of the constitutional provisions, obviously seem to be that the matter has to be considered at different levels in the hierarchy of Government before it need be accepted as the final expression of the Government's will. I am, therefore, inclined to agree with my learned brother that the starting point for limitation in the present case was the appellate order of the departmental authority which confirmed the original order of his dismissal and the suit having bee brought within six years of that date, must be held to be within time. B. Z. KAIKAUS, J.‑The only question involved in this appeal by special leave is as to the limitation for a suit challenging the validity of an order of dismissal. The facts in so far as they relate to the question of limitation are very brief. F. A. Khan appellant was employed as an Inspector in the Land Customs Department. On the basis of certain charge;. he was dismissed by the order of the Collector of Land Customs on the 15th August 1950. He filed an appeal against the order of the Collector of Land Customs before the Central Board of Revenue (who had jurisdiction to hear the appeal) and the appeal was dismissed on the 7th May 1952. On 25th June 1958, he filed the suit out of which this appeal arises for a declaration that the order of his dismissal was void and inoperative and that he continued to hold the post of an Inspector. The defendant, that is, the Pakistan Government, raised a preliminary objection that the suit was governed by residuary Article 120 of the Limitation Act which provides for a period of six years from the date when the right to sue accrues and in this case the right to sue had accrued on the 15th August 1950. It may be observed here that from the date of the order in appeal the suit would be within time as the period of notice of two months under section 80, C. P. C. had to be excluded. The trial Court found the issue of limitation against the appellant. On appeal the District Judge found that a fresh cause of action had arisen when the Central Board of Revenue dismissed the appeal and holding the suit to be within time he remanded the case to the trial Court for decision on the merits. Against the order of remand there was an appeal to the High Court and a learned Single Judge of the High Court held that a right to sue having, accrued on the date when the appellant was dismissed, it was necessary to file a suit within six years. On this view the learned Single Judge accepted the appeal and dismissed the suit. Admittedly the suit is governed by residuary Article 120 of the Limitation Act under which article suit has to be filed within six years from the time when "the right to sue accrues". The cause of action in this case is the dismissal of the appellant and ordinarily the right to sue would accrue when the order of dis missal was passed. However, the order of the Collector was by law subject to an appeal and the question to be determined is whether this fact will make a difference. The contention on behalf of the appellant is that a cause of action will arise only when the appellant has exhausted his remedy on the departmental side and a final order of dismissal has been made. The situation that is created may be described thus. If there be two forums for the determination of a particular matter the determination in the first forum being subject to the deter mination in the second forum would a cause of action for approaching the second forum arise by any order in the first forum which if not interfered with would decide the matter or when the first forum has finally dealt with the matter? But whether we put the question in these words or put a simple question as to the effect of the competence of appeal against an order the answer will depend on the nature of the proceedings in appeal and their relation to the original order. When an appeal is filed does the matter become sub judice and does the appellate Court rehear the matter and pass its own order or is the appellate Court only a Court of error? When the appellate Court has passed its order does the original order continue to exist? Are the original and appellate proceedings independent pro ceedings in one of which the other is challenged or are they steps in the same proceedings? None of these matters is res integra and in fact decided case show that in respect of the nature of an appeal the following propositions may be regarded as established: (i) when an appeal is filed the matter becomes sub judice and is reheard by the appellate Court which does not Act merely as a Court of error; (ii) after there has been an appeal even though an appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the appellate Court; (iii) the original and appellate proceedings are steps in one proceedings. For the first of these propositions reference may be made to the judgment of the Federal Court of pre‑Partition India in Lachmeshwar v. Keshwar Lal (AIR 1941 FC 5), wherein it was held after a discussion of Indian, English and American cases that according to the law as it stood in India and England and even in the United States of America an appeal was a rehearing of the suit and not merely a proceeding in which the correctness or other wise of the decision already made by the original Court was to be determined. It will be useful to reproduce the words of Varadachariar, J. at page 13 for they are of help in dealing with an argument on behalf of the respondent based on Order XLI, rule 5, C. P. C.:‑ "Once the decree of the High Court had been appealed against, the matter became sub‑judice again and thereafter this Court had seisin of the whole case, though for certain purposes, e.g., execution, the decree was regarded as final and the Courts below retained jurisdiction." The second of these two propositions was enunciated in 1871 by a Full Bench of the High Court of Bengal in a case cited as Ram Churn Bysak and another v. Luckhee Kant Bornick and others (16 SWR 1). It was held that "whether the decree of the appellate Court is for reversing or for affirming the decree against which the appeal was preferred, it is in either case the final decree in the cause, and, as such, the only decree which is capable of being enforced by execution after it is once pronounced". In that case a question arose as to whether the decree to be executed was the decree of the appellate Court because there had been appeal to the High Court which affirmed the decree of the trial Court and an application for execution was filed which would be within time if the decree was a decree of a Chartered High Court execution of which is governed by the twelve years rule and beyond time if it was a decree of a mofussil Court governed by the three years rule. The view expressed by the Full Bench of the High Court of Bengal in this case was adopted in a number of cases including two Full Benches of the Allahabad High Court and may be regarded as the generally accepted view on this subject. The view had, shortly after it was expressed, come up for dis cussion before the Judicial Committee of the Privy Council in Kristo Kinkur Roy and another v. Rajah Burrodacaunt Roy and another (14 Moore's I A 465). The Madras High Court had also in two cases expressed a view similar to that expressed by the Full Bench of the High Court of Calcutta. Their Lordships of the Privy Council did not find it necessary to determine whether the view expressed by the Full Bench of the High Court of Bengal was correct, but they made observations which support it and only added a rider to it which in no way detracts from it. Their Lordships said:‑ "The Full Bench of the High Court of Bengal, however, in the decision of the 12th of June 1871, already referred to, has ruled that, whether the decree of the Lower Court is reversed, or modified, or affirmed, the decree passed by the appellate Court, is the final Decree in the suit; and, in the words of Mr. Justice Mitter, "as such the only decree which is capable of being enforced by execution." And that is in accordance with the Madras decision already cited. Chief Justice Scotland's words are whether that decree be in affirmance, or reversal, or modification of the decree appealed from, it becomes the final decree in the suit, and therefore the decree enforceable by execution." The function of an appellate Court is to determine what decree the Court below ought to have made. It may affirm, reverse, or vary the decree under appeal. In the first case, it leaves the original decree standing, superadding, it may be, an Order for the payment of the costs of the appeal, or for interest on the amount originally decreed. In the other two cases it substitutes other relief for the relief originally given. In all these cases the decree of the appellate Court may be regarded either as a direction to the Lower Court to make and execute a decree of its own accordingly, or as an independent decree, whether it is to be executed by the appellate Court or by the Lower Court. In the latter case, a further question arises, viz., whether the original decree, if wholly affirmed (or so much of it as has been affirmed, if it has been partially affirmed), is to be treated as merged or incorporated in the decree of the appellate Court as the sole decree capable of execution, or whether both decrees should be treated as standing, execution being had on each in respect of what is enjoined by the one, and not expressly enjoined by the other. But sections 360, 361 and 362 (a), which prescribe the form of the Decree of the appellate Court, direct a copy of it to be entered on the Register, and treat that decree as a Decree to be executed, seem to exclude the notion that it is a mere direction to the Lower Court to pass and execute a certain decree. If the question were res integra, their Lordships would incline to the view taken by the Judges of the High Court in the present case, viz., that the execution ought to‑ proceed on a decree, of which the mandatory part expressly declares the right sought to be enforced. Considering, however, that, for the reasons already given, the question is not of much practical importance, their Lordships will not express dissent from the rulings of the Madras Court, and of the Full Bench of the Bengal Court, further than by saying, that there may be cases in which the appellate Court, particularly on special appeal, might see good reasons to limit its decision to a simple dismissal of the appeal, and to abstain from confirming a decree erroneous or questionable, yet not open to examination by reason of the special and limited nature of the appeal. Their Lordships may further suggest that in all cases it may be expedient expressly to embody in a decree of affirmance so much of the decree below as it is intended to affirm, and thus avoid the necessity of a reference to the superseded decree." In later cases the Privy Council appears to have definitely accepted the view that the decree after appeal was a decree of the appellate Court. In Lala Brij Narain v. Kunwar Tejbal Bikram Bahadur (37 I A 70) the Privy Council held that after the affirmation of a decree on appeal the trial Court had no jurisdiction to amend the decree. This implied that the decree was the decree of the appellate Court. In Abdul Majid v. Jawahir Lai (36 All. 350) the contention before the Privy Council was that as an appeal had been filed against a preliminary decree before the Privy Council which appeal had been dismissed for want of prosecution, the preliminary decree should be regarded as a decree of the Privy Council and time for applying for the final decree should be deemed to run from the date of the dismissal of the appeal by the Privy Council. This contention was rejected by the Privy Council on the ground that a dismissal for want of prosecution was a ministerial and not a judicial act and it is on this ground alone that the Privy Council found the decree to be not its own decree. What was held by the Privy Council indicates that were it not for the fact that the appeal was dismissed for want of prosecution the decree of the High Court would have merged in the decree of the Privy Council. Their Lordships said: "The chief matter of argument before this Board was a contention that the decree which it is sought to enforce had been constructively turned into a decree of His Majesty‑in- Council and assigned to the date of the 13th of May 1901, by virtue of the dismissal of the appeal for want of prosecution on that date, and that, therefore the period of limitation was twelve years from the 13th of May 1901, by virtue of Article 180 of the Indian Limitation Act. Their Lordships see no foundation for this contention, which appears to have been the basis of the decision of the Courts below. The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognized authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all. To put it shortly, the only decree for sale that exists is the decree, dated the 8th of April 1893, and that is a decree of the High Court of Allahabad. The operation of this decree has never been stayed, and there is no decree of His Majesty‑in‑Council in which it has become merged. The period of limitation applying to the enforcement of it at all material times was therefore a period of three years. The respondents' right is therefore barred by limitation." The third proposition should really follow from the first two, but reference may be made in this connection to the judgment of the Supreme Court of India in Garikapati Yeeraya v. Subbiah Choudhury (P L D 1957 S C (Ind.) 448), where after an exhaustive review of cases it was held that "the legal pursuit of a remedy, suit, appeal and second appeal, are really but steps in a series of judicial proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding". We are not at all unfamiliar with cases where an appeal is said to be a continuation of a suit or is included within the word suit. The Legislature when it provides a hierarchy of tribunals for the determination of a dispute is really providing one complete procedure for such determination, proceedings before different tribunals being only steps in this procedure. If the propositions stated above are to be accepted there appears to be good ground for holding that the passing of an order subject to appeal will not necessitate the filing of a suit for it is only a step in a proceeding and not a final order. In any case once an appeal is filed the matter become sub judice and when the appellate authority passes an order the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order and this order can be made the basis of a suit. I will however before proceeding further refer to case wherein the principles stated above have been expressly or impliedly given effect to in deciding questions relating to limitation. There are two Privy Council cases Chandra Mani Saha and others v. Anarjan Bibi (61 I A 248) and Baijnath Sahai v. Ramgut Singh and others (23 I A 45), which appear to be directly in point. The first case arose under Article 180 of the Limitation Act which provides a period of three years for an application for delivery of possession of property purchased at a sale in execution. The starting point for limitation is the date "when the sale becomes absolute". In that case property having been sold in execution of a decree the judgment‑debtor preferred objections to the sale but the Subordinate Judge who was executing the decree dismissed the objections and confirmed the sale under 'Order XXI, rule 92, C. P. C. Order XX1, rule 92, provides that when objections to the sale are dismissed "the Court shall make an order confirming the sale and the sale shall therefore become absolute" so that prima facie limitation had to be reckoned from confirmation. Appeals were filed by the objectors to the High Court which were dismissed. The application for execution was within time from the decision of the appeals by the High Court, but was beyond time from the date when the sale were confirmed under Order XXI, rule

92. In spite of the wording of rule 92, however the Privy Council held that an appeal having been filed the sale should be regarded as having become absolute only on decision by the High Court. Their Lordships said (61 I A 248) There is no doubt that the above‑mentioned rule is applicable to the present case: for as already stated the judgment‑debtors did apply to set aside the sales, and the Subordinate Judge disallowed the applications on April 15, 1924 and on April 22, 1924, he confirmed the sales. The sales therefore became absolute on April 22, 1924, at any rate so far as the Court of the Subordinate Judge was concerned. But the judgment‑debtors had a right of appeal under Order XLIII, rule 1 (j) against the orders of the Subordi nate Judge by which he disallowed their applications to set aside the sales. This right of appeal the judgment‑debtors exercised. Upon the hearing of the appeals, the High Court, by reason of the provisions of section 107, subsection (2), of the Code had the same powers as the Court of the Subordinate Judge. In the present case, the High Court dismissed the appeals and on such dismissal the orders of the Subordinate Judge confirming the sales became effective and the sales became absolute. Between the case before the Privy Council and the case before us there is close analogy. In that case limitation was to start ‑from the time when the "sale became absolute" and in the present case limitation has to start from dismissal which constituted the cause of action. If in spite of the fact that by law the sale had become absolute, limitation did not run because the order making it absolute was subject to appeal, then in spite of the fact there was an order of dismissal in the present case limitation should not run till the matter was decided by the appellate tribunal. In the second case the question for decision was whether a suit to set aside a sale was barred under Article 12 of the Limitation Act. A sale had been made by the Collector under the Public Demands Recovery Act. The owners of the property submitted a petition to the Commissioner that the sale be not confirmed. The Commissioner referred the petition to the Collector for report and after receipt of the report rejected the petition of the owners and confirmed the sale. The owners then presented a petition for revision which was in the nature of an appeal to the Board of Revenue against the order of the Commis sioner. The Board set aside the order of the Commissioner and referred back the case to the Collector for decision on the merits. The Collector made an order declining to confirm the sale. There was an appeal by the purchasers to the Commissioner who held that he had no jurisdiction to entertain the appeal so that the order of the Collector refusing to confirm the sale stood. The purchasers then presented an appeal to the Board of Revenue. The Board reversed its previous decision presumably on account of a judgment of the High Court of Calcutta and held that its own previous order as well as the subsequent proceedings were without jurisdiction. The effect of this order was that the order of the Commissioner confirming the sale became operative. The terminus a quo for limitation under Article 12 is a date on which "the sale is confirmed or would otherwise have become final and conclusive had no such suit been brought". The suit was barred if the starting point was the Commissioner's order confirming the sale, but was within time if the starting point was the last order of the Board of Revenue. Their Lordships (23 I A 45) held the suit to be within time and the reasons for this finding will be found in the following passage: "It cannot be said in the opinion of their Lordships when the, parties were litigating before the Revenue Courts as to whether the sale should be confirmed or not because that was the object of the litigation before the Revenue Courts‑that the sale had become either final or conclusive. In fact, their Lordships are of opinion that there was not during the period which had elapsed between the date of the sale and August 21, 1886, any sale to set aside which a suit could have been brought. Therefore their Lordships are of opinion that the confirmation dates only from August 1886, and that the Law of Limitation is not a defence to this action." It is to be observed that limitation starts not only when the sale becomes final and conclusive, but even when it is confirmed and the sale had been confirmed by the Commissioner. Yet it was not regarded as a confirmation in view of the fact that the parties were still litigating the matter in that forum. It is remarkable that their Lordships did not find jurisdiction in the Revenue Board to bear an appeal against the order of the Commissioner, but they were of the opinion that the question of jurisdiction was one of difficulty and the appeal to the Revenue Board had been filed in good faith. Simply on the ground that a remedy was being pursued in good faith their Lordships held that limitation did not start from confirmation, though the confirmation was admittedly valid and had not been challenged before a competent tribunal. The Board itself held that it had no jurisdiction in the matter. This case supports the proposition put forward above that it is only when a litigation in one forum is completed that the litigation in the other forum should start and that an order really becomes an order when the appeals to which it is subject art exhausted. There are some cases of pre‑Partition and post‑Partition India which support the propositions cited above but which it is not necessary to refer for they generally follow the Privy Council cases, except to the observations in Muthu Korakkai Chetty v. Madar Ammal and others (I L R 43 Mad. 185), of Sadasiva Ayyar, J., wherein it is said "I think the principle underlying the decisions of their Lordships both in Mst. Ranee Surno Moyee v. Shooshee Mokhee Burmonia (1886) 12 M I A 244 and Baijnath Suhai v. Ramgut Singh (1896) 1 L R Cal. 775 (P C) might be invoked in favour of the applicant in this case. That principle (as I understand it) is that whenever proceedings are being conducted between the parties bona fide in order to have their mutual rights and obligations in respect of a matter finally settled, the cause of action for an application or for a suit the relief claimable wherein follows naturally on the result of such proceedings should be held to arise only on the date when those pro ceedings finally settle such rights and liabilities." The reference to bona fides in the above paragraph is based on the observations of their Lordships of the Privy Council in Baijnath Sahai v. Ramgut Singh and others to which observations I have already referred‑wherein it was said that the Revenue Board may really not have had jurisdiction in the case and that it was sufficient that the parties were litigating the matter bona fide before it. Although the above discussion as to the nature of an appeal relates to Courts there is no reason why the principles stated therein should not apply to quasi judicial tribunals. We are concerned in the present case with a tribunal that hears both parties, records evidence and on the basis of evidence decides rights of parties. The word "appeal" when used as a legal term refers to a proceeding whose nature has been described above and whenever it is used in enactments or rules it should, subject to the context be understood in that sense. Reliance had been placed on behalf of the respondent on the observations of the Privy Council in Juscurn Boid and another v. Pirthichand Lal (46 I A 52) "that under the Indian Law and procedure an original decree is not suspended by presentation of an appeal nor is its operation interrupted where the decree on appeal is one of dismissal". These observations which are based on the explicit wording of Order XLI, rule 5 cannot be regarded as negativing the propositions which receive their support from the various judgments of the Privy Council cited above. The correct position as will appear from the extract already reproduced from the judgment of Varadachariar, J., in Lachmeshwar v. Keshwar Lal is that what is stated about the nature of an appeal is subject to the particular exceptions contained in the Civil Procedure Code relating to execution etc. Order XLI, rule 5 contains one such exception its object being to assist in the realization of a relief which one Court has found the decree- holder to be entitled to. Even before decree property can be attached in order to safeguard the right of the plaintiff and Order XLI, rule 5, is a stronger provision because already one Court has found in favour of the decree‑holder. The Privy Council could not have intended to lay down in Juscurn Boid and another v. Pirthichand Lal that the matter did not become sub judice when the appeal was filed or that after appeal it was not the decree of the appellate Court which was the executable decree for this would not be consistent with the Privy Council cases quoted above. The case before the Privy Council in 46 I A 52 was one under Article 97 of the Limitation Act' where the terminus a quo is the failure of consideration and as observed by Rustomji in his Commentry on the Limitation Act, 1908, at p. 987, is distinguishable from the case under Article 180 cited above. The simple fact that when an appeal is filed the matter becomes sub judice would be sufficient to give a fresh start for limitation, but the matter can be put on the broader ground accepted by the Privy Council that limitation starts only when the litigation in what I may call the subordinate forum has terminated and a final order has been passed. On behalf of the respondent it is urged that the plaintiff could have filed a suit when the order of dismissal was passed by the Collector and therefore there was a right to sue and limitation did begin to run from that date. There is more than one answer to this contention. The appellant could have filed a suit even when the Collector passed the order because the plaintiff was entitled to waive his right of appeal against the decision of the Collector and to say that he will treat it as final. The order of the Collector was not a final order but it was open to the plaintiff to make it a final order by waiving his right of appeal. If he filed a suit at once the suit would not be premature because the plaintiff would say that he had waived his right of appeal. That however does, not mean that the order itself was sufficient for a cause of action. It was the order coupled with the waiver that created a cause of action. The second reply to this contention is that when the appeal was in fact filed the matter became sub judice. Once it became sub judice a right to sue would arise only when it was decided. Also when it was decided only the order of the appellate tribunal existed, the original order having disappeared and merged in the appellate order which order would then be the basis of suit. I would hold that the suit was within time and accepting this appeal would remand the suit to the trial Court, for decision on the merits, costs of this appeal to be costs in the cause. A. H. Appeal accepted.