Shah, J.:— On April 13, 1932, one Chandanmal Jasraj filed suit No. 472 of 1932 for possession of an immoveable property and for past and future mesne profits. The suit resulted in a decree, which was passed on September 9, 1933. The defendant filed an appeal against that decree, but that appeal was dismissed on November 27, 1935, as having abated on account of the heirs of the plaintiff, who had died in the meantime, not having been brought on record. The defendant thereafter filed an application for review of the order dismissing the appeal, but that application was also dismissed on June 8, 1936. In execution of the decree, Suratsing, the adopted son of the deceased plaintiff Chandanmal, recovered possession of the property on March 13, 1949. A few days thereafter, i.e on April 8, 1949, he made an application to the trial Court for ascertainment of the mesne profits from April 13, 1932, i.e the day on which the suit was filed till March 13, 1949, when possession of the property in question was recovered by him. It appears that in this application Suratsing had omitted to mention the fact that the defendant had filed an appeal against the decree in the suit. Suratsing accordingly filed an application on January 18, 1951, for amendment of the aforesaid application so as to incorporate the date of the dismissal of the appeal by the defendant, Somehow or the other, however, the amendment of the application, which was granted on February 3, 1951, was not properly carried out. In other words, apart from other things, the date April 13, 1932, which had appeared in the application was scored out and instead the date November 27, 1935, was substituted in its place. This amendment does not seem to have been noticed by Suratsing for about two years. On February 11, 1953, after he came to know of the errors in the amendments made in the main application, Suratsing filed another application for amending the main application so as to indicate that the mesne profits that were prayed for were from April 13, 1932, on which date the suit for possession was filed and for a period of three years subsequent to the final disposal of the appeal by the District Court. This application was granted by the Court. But it appears that no further amendment of the main application was carried out in pursuance of the order. On July 24, 1953, the application for ascertainment of mesne profits was heard by the Court and by an order made on that day, the mesne profits were fixed for a period of three years at the rate of Rs. 25 per month from November 27, 1935 to November 27, 1938. (It may be remembered that it was on November 27, 1935, that the appeal, which was filed by the defendant against the decree, was dismissed by the Court). The order further directed that the decree in terms thereof shall be drawn up on Suratsing paying the necessary court-fees in respect of the amount awarded to him as mesne profits. Being aggrieved by this order, it appears, Suratsing filed an application, exh. 63-A, on the same day praying that the order be reviewed and it may be corrected so to allow mesne profits also from the date of the suit, i.e April 13, 1932. Some time after this application was filed, Suratsing also filed an appeal against the order dated July 24, 1953, being appeal No. 406 of 1953 in the District Court. This appeal was dismissed on January 5, 1955, on the ground that since no executable decree was drawn up on account of the plaintiff having failed to pay the necessary Court-fee for the amount of mesne profits that was ascertained by the Court by its order dated July 24, 1953 and the appeal was not from such decree, the appeal was not maintainable. The application, exh. 63-A, on the other hand was also dismissed on April 22, 1957. The reason for dismissing this application as given by the learned Joint Civil Judge, Junior Division, Ahmednagar, was that it was Suratsing himself, who had failed to carry out the amendment in the main application in pursuance of the order passed by the Court on his application dated February 11, 1953; and that, therefore, there was no error on the face of the record, which called for any correction in the order passed by the Court, under s. 152 of the Civil Procedure Code. On April 27, 1957, Suratsing filed an application, exh. 94, praying that the decree in terms of the order passed on July 24, 1953, be drawn up on the acceptance of the Court-fees from him, which he offered to pay. The Court-fees were allowed to be paid and the decree was formally drawn up on May 9, 1957. Suratsing then filed Darkhast No. 3 of 1957 on September 16, 1957, for execution of the decree. But that Darkhast was disposed of on July 25, 1958. The present Darkhast was thereafter filed on August 6, 1958, for the recovery of the amount of mesne profits awarded by the decree by attachment of the property belonging to the defendant. The defendant in this Darkhast contended that it was barred by time, since although the formal decree was drawn up on May 9, 1957, in law it was deemed to have been passed on and bore the date July 24, 1953, when the amount of mesne profits was ascertained and the defendant was ordered to pay the same and the Darkhast was filed more than three years after the date of the decree. To save limitation for this application, Suratsing relied upon the appeal, which he had filed, being Appeal No. 406 of 1953 to the District Court against the order dated July 24, 1953, which had fixed the mesne profits at Rs. 775. He also relied upon Darkhast No. 3 of 1957, which was disposed of on July 25, 1958. The executing Court held that the application was not barred by time, since Suratsing was entitled to the deduction of time taken up by the aforesaid appeal and also by the said Darkhast. That Court accordingly ordered issue of a Jangam Warrant against the defendant. Against this order the defendant went in appeal to the District Court. The learned Assistant Judge, who heard this appeal, reversed the order of the executing Court and held that the application for execution filed on August 6, 1958, was barred by time, since it was manifestly made more than three years from July 24, 1953, on which date the decree for mesne profits though drawn up on May 9, 1957, was actually passed. The learned Judge did not allow to Suratsing the period of time taken up in the prosecution of appeal No. 406 of 1953 in the District Court, since it was not an appeal against an executable decree. The learned Judge does not seem to have referred in his judgment to the prior Darkhast No. 3 of 1957, which was filed on September 16, 1957, after the decree was drawn up on May 9, 1957. But that seems, to be immaterial because, if the time taken up in the prosecution of the appeal as aforesaid could not be excluded from the period of limitation of three years from July 24, 1953, the fact that Darkhast No. 3 of 1957 was filed on September 24, 1957, which also was presented more than 4 years after the aforesaid date, could not make any difference. It is against this order allowing the defendant's appeal and dismissing the Darkhast that Second Appeal No. 887 of 1960 is filed by Suratsing in this Court.

2. Before this appeal, however, another appeal was filed by Suratsing in the District Court on June 29, 1957, against the order of the trial Court fixing the amount of mesne profits, dated July 24, 1953 and also against the order dated April 22, 1957, dismissing his application exh. 63-A, for review of that order. As already stated, the application, exh. 63-A, was dismissed by the trial Court on the ground that it was Suratsing's own mistake that he had not taken care to amend the main application praying for ascertainment of mesne profits, although his application for amendment thereof was granted by the Court on February 11, 1953. Before the learned Judge, who heard the appeal, it was conceded by the learned advocate for Suratsing that no appeal could lie against the order dated April 22, 1957, by which the application, exh. 63-A, for review of the order dated July 24, 1953, was dismissed and accordingly, he did not question the validity of that order. The only question, therefore, that the learned Judge had to determine was as to whether there was any substance in the appeal against the order dated July 24, 1953, by which the amount of mesne profits was ascertained and awarded. To this appeal, however, the defendant raised a preliminary objection stating that the appeal was barred by time, since it was filed on June 29, 1957, more than three years after the date of that order. This contention was upheld by the learned Assistant Judge and the appeal was dismissed with costs. It is against this order of the learned Assistant Judge that Suratsing has filed Second Appeal No. 886 of 1960 in this Court.

3. Taking up the latter appeal first, it was urged by Joshi in support thereof that the appeal could not be said to have been barred by time on account of the fact that the truly effective decree was passed on May 9, 1957 and the appeal was filed on June 29, 1957, almost within two months from that date. Mr. Adik, the learned advocate for the defendant, on the other hand, contended that Suratsing could not take advantage of his own default and claim exemption for the period between July 24, 1953, when the order fixing the amount of mesne profits was passed and May 9, 1957, when the decree in terms of the order was drawn up, since it was he himself, who had delayed payment of the Court-fees, on which alone a formal decree for the mesne profits was directed to be drawn up by the Court. It appears to me that Suratsing himself created a lot of confusion in this case. As already stated, he had filed an appeal (No. 406 of 1953) against the order dated July 24, 1953, in the District Court and that appeal was already dismissed on January 5, 1955. In view of that proceeding, I wonder, how he could have filed another appeal against the same order. As already observed, the earlier appeal was dismissed inasmuch as it was found to be mis-conceived, because there was no executable decree at the date of filing of the appeal against which an appeal could be filed. Irrespective of whether that decision was right or wrong in law, in my opinion, the appeal subsequently filed by Suratsing against the same order on June 29, 1957, must be held to be barred by res judicata and really speaking, it was not necessary for the disposal of that appeal to decide as to whether it was barred by limitation or not.

4. It was then urged by Joshi that on the date on which the appeal was filed, the decree was already drawn up and, therefore, the appeal should be treated as if it was an appeal against the decree drawn up on May 9, 1957. I am afraid, however, that contention cannot be taken into account, because the very preamble of the memo, of appeal shows that it was an appeal only against the order dated July 24, 1953 and the order passed on April 22, 1957. There is, indeed, a reference in that preamble to the date April 27, 1957. But that date has a reference only to the application made by Suratsing praying that on his payment of the Court-fees the decree in terms of the order passed on July 24, 1953, be drawn up. As a matter of fact, even the learned Assistant Judge in his judgment has referred to the appeal as having been filed only against these two orders and the learned advocate for Suratsing himself also does not seem to have contended before the learned Judge that it was an appeal against the decree drawn up on May 9, 1957.

5. Assuming, however, that the appeal could be said to have been filed against the decree drawn up on May 9, 1957, it could not be said to be one within time, since under O. XX, r. 7, of the Civil Procedure Code, the decree that was so drawn up related back to and bore the date July 24, 1953, on which date the order fixing the amount of mesne profits was passed and the defendant was directed to pay that amount and the period of limitation for an appeal against that decree would commence from such date. In my opinion, therefore, the appeal, as already stated, was barred by res judicata on account of the decision in appeal No. 406 of 1953 against the same order and further it was also barred by limitation, since it was filed about as much as four years after the date of the decree. In the result, there is no substance in Appeal No. 886 of 1960 and the same is dismissed with costs.

6. Turning to the Second Appeal No. 887 of 1960, it has already been stated that the Darkhast from which this appeal arises, was held to be in time by the executing Court, but in appeal it was held to be barred by time and was accordingly dismissed by the District Court. In this appeal, it was urged by Joshi that the effective decree, which was capable of execution, was drawn up and came into existence on May 9, 1957 and that, therefore, the Darkhast was in time. It was alternatively contended that even if the decree so drawn up was to be deemed to have been passed on July 24, 1953, on which date the order fixing the amount of mesne profits was passed, the application for execution was saved from the bar of limitation by the appeal, which his client had filed in the District Court against the order dated July 24, 1953, being Appeal No. 406 of 1953. The trial Court, as already stated, accepted this contention and allowed the execution to proceed. The learned Assistant Judge, however, took a different view of the matter relying upon certain decisions of the Patna High Court and held that the application was barred by time. Mr. Adik, the learned advocate for the defendant, contended that the period of time taken up in the prosecution of the appeal No. 406 of 1953 could not be deducted while computing the period of limitation for the Darkhast, since the appeal contemplated by art. 182 of the Limitation Act was one against an executable decree and Appeal No. 406 of 1953 was only against the order of the Court fixing the amount of the mesne profits and no executable decree in terms of that order was drawn up before that appeal was filed. In my opinion, this contention deserves to be accepted. It may be noted that the Court, while passing the order fixing the mesne profits on July 24, 1953, had left it to the applicant Suratsing to pay the necessary Court-fee in respect of the amount awarded to him as and by way of mesne profits and to get a decree drawn up, so that he could execute that decree and recover the amount from the defendant. If the applicant instead of paying the Court-fees filed an appeal against that order, which, it may be noted, was not an order passed in execution of a decree, such appeal, in my opinion, does not fall within the purview of art. 182 of the Limitation Act. That article provides that the period of limitation for an application for execution of a decree shall start from the date of the decree and in case an appeal has been filed from that decree, from the date of the final decree of the Court of Appeal in that appeal. The very terms of the article indicate that the decree contemplated therein is an executable decree; if it were otherwise, the Article would not say that in the first instance the period of limitation will begin to run from the date of the decree. Consequently, when that article refers to the final decree of the Court of Appeal, in an appeal filed from that decree, such decree would also mean an executable decree. Thus, it is only where an appeal against an executable decree has been filed that the period of limitation for the purpose of an application for execution of the decree would commence from the date of the decree of the Court of Appeal. In the present case, an appeal against the order dated July 24, 1953, was not an appeal against an executable decree, because the applicant had not paid the necessary Court-fees on that day nor was any decree in terms of the order drawn up on that day. The decree, as already stated, was drawn up so late as on May 9, 1957, more than two years after the dismissal of that appeal. Accordingly, in my judgment, the applicant would not be entitled to claim exemption for the period taken up by his appeal against the order dated July 24, 1953. In that event, the present application for execution of the decree filed on August 6, 1958, would be clearly barred by time.

7. It was next urged by Joshi that according to the observations of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey . 1932 L.R 59 I.A 283, S.C 34 Bom L.R 1065., art. 182 of the Limitation Act would apply even in cases where an appeal was irregular or incompetent and that, therefore, although no appeal could lie against the order dated July 24, 1953, the time taken up for the prosecution of that appeal should be allowed to the applicant. I am afraid, this argument cannot be accepted. The facts in that case were that an application purporting to be an appeal was filed by an assignee of a mortgage against the ‘order’ of the Subordinate Judge of June 24, 1920, by which his claim to the assignment was disallowed while passing a final decree for sale of the mortgaged properties. The decree was drawn up on August 2, 1920, but properly dated June 24 and the aforesaid application was presented to the High Court on August 27, 1920. The High Court found that the application purporting to be an appeal was irregular in form as not being an appeal against the decree of the Subordinate Judge and also being insufficiently stamped for the purpose and it was eventually dismissed both on the ground of irregularity and upon the merits on August 24, 1922. On October 3, 1923, the decree-holders presented an application to the Subordinate Judge for execution of the decree by sale of the mortgaged properties. The judgment-debtors, however, opposed it on the ground that it was barred by art. 182 of the Limitation Act. Their Lordships of the Privy Council had, therefore, to consider the effect of the assignees' appeal for the purpose of their decision on the question as to whether the decree-holders' application was barred by art. 182 of the Limitation Act and they held that there was no force in the contention that the assignees' appeal by reason of its irregularity as pointed out by the High Court was not an appeal at all. It was in this connection that their Lordships observed that any application by a party to an Appellate Court, asking it to set aside or revise a decision of a Subordinate Court, was an appeal within the ordinary acceptance of the term and that it was no less an appeal because it was irregular or incompetent. In view of the fact, however, that the decree was drawn up before the appeal by the assignee was filed in the High Court, the Judicial Committee while interpreting art. 182 held that in the case before them there was an appeal from the mortgage decree of June 24, 1920, that the time only ran against the decree-holders who were respondents in that appeal from August 24, 1922, the date of the Appellate Court's decree and that, therefore, the application for execution was not barred by time. Thus, it will be clear that the assignee's appeal in that case was regarded as an appeal against the mortgage decree for sale of immoveable properties, which, indeed, was an executable decree and the decree-holders were held entitled to avail of the time taken up for the disposal of that appeal for bringing their application for execution within the period prescribed by art. 182 of the Limitation Act.

8. In the present case, however, as already observed, there was no executable decree passed by the order dated July 24, 1953, nor was any decree drawn up in terms of that order prior to the presentation of the appeal to the District Court.

9. All that the Court had done by the order passed, on that day was that the applicant had to pay the necessary Court-fees for the amount fixed as mesne profits and had to get a formal decree drawn up in his favour. In my opinion, therefore, the observations relied upon by Joshi do not lend any support to his arguments.

10. Accordingly, I agree with the decision of the learned Assistant Judge that the application for execution dated August 6, 1958, was barred by time. In the result, this Second Appeal also fails and is dismissed with costs.

11. Appeals dismissed.