Shearer, J.:— The question which has been referred to this bench for decision has been stated by Sinha and Rai, JJ., thus: “Whether the word ‘appeal’ in column 3 of clause (2) of article 182 of the Limitation Act includes an appeal preferred against an order refusing to set aside an ex parte preliminary decree in a suit for partition in computing the period of limitation for executing the final decree passed in such a suit”. article 182 of the Limitation Act prescribes the period of limitation

“for the execution of a decree or order of any Civil Court not provided for by article 183 or by section 48 of the Code of Civil Procedure”.

By reason of what is contained in column 3 of the article, the starting point for limitation varies, according as there has or has not been an appeal or a review of judgment or an amendment of the decree. Article 182 substantially reproduces the provisions contained in the earlier Limitation Acts of 1871 and 1877. The principles underlying all these provisions were twofold. One princile, to borrow the language used by Sir Dinshah Mulla in Nagendra Nath Dey v. Suresh Chandra Dey “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 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 the execution of the final decree or order is the period of limitation applicable to decrees of the subordinate court itself, and not to decrees of the High Court. Section 19 of the Code, of Civil Procedure of 1859 prescribed a period of twelve years' limitation for applications for the execution of decrees of a Chartered High Court, while section 20 prescribed a period of three years' limitation for applications for the execution of decrees passed by other courts. When, shortly afterwards, the Court of the Sadar Diwani Adalat was abolished and its appellate jurist diction was transferred to the High Courts, a question arose as to whether a decree of a High Court passed on appeal from a decree of a subordinate court could be executed within twelve years or had to be executed within three years. There was a conflict of decisions on the point, and as appears from the observations of Sir James Colvile in Kristo Kinkur Roy v. Rajah Burrodacaunt Roy one at least of the learned judges who came to the conclusion that the longer of the two periods of limitation was the period applicable, admitted that his construction involved consequences absurd in themselves, and, presumably, contrary to the intention of the Legislature. It is quite clear that it was in order to put an end to this controversy that article 167, of the Limitation Act of 1871 took the form which it did and that, but for the imperative necessity of making the intentions of the legislature clear, article 167 might well have taken a very different form. The reason why in column 3 of article 167 different starting points for limitation were prescribed was to prevent any argument being put forward that, as the decree of the subordinate court merged in or was superseded by the decree of the High Court on appeal, the period of limitation applicable was the period applicable to decrees of the High Court and not that applicable to decrees of the subordinate courts. 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 for 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 stress this point as, in some of the decisions in which a forced interpretation has been put in the language used in the article, it has been completely overlooked. The word “judgment” in clause (3) in the third column 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 that decree or order. The narrow point which has been referred to us for decision is whether the word “appeal” in clause (2) must be so construed or whether it may be construed to include also an appeal against an order declining to set aside an ex parte decree. Since 1871 this point has on a, number of occasions, come before the various High Courts, and until 1927, except in one instance, the decisions uniformly were that the word “appeal” there meant, and could only mean an appeal from the decree or order of which execution was sought. The decision in which a contrary view was taken is a decision of the High Court of Calcutta, Lutful Huq v. Sumbhudin Pattuck. In that case execution was sought of an ex parte decree passed on the 7th February, 1876. The application for execution was not made until the 18th of December, 1880, that is, until more than three years had elapsed since the passing of the decree. In this interval an application had been made to have the ex parte decree set a side, and, when that application was rejected, an appeal had been preferred by the judgment-debtor which was ultimately dismissed on the 19th December, 1877. It appears that, when the application to have the ex parte decree set aside was made, the trial court ordered that execution of the decree should be stayed and that a similar order was made when the appeal against the order of the trial court dismissing the application was preferred. Under section 15 of the Limitation Act of 1908, the decree-holder would have been entitled to exclude the period during which execution of his decree had been stayed. Section 15 of the Limitation Act of 1877 did not, however, apply to orders of stay made in the course of proceedings for the execution of decrees. It is quite clear from the judgment of Prinsep, J. that in his opinion, this was a serious defect in the Act and that it was largely in order to prevent a palpable injustice Resulting from it that he concurred in the view expressed by Morris, J., that the decree has been kept open and did not become final Until the order of the appellate court was passed on the 19th December, 1877. With the greatest respect, it appears to me that, in order to do what they considered to be justice in this particular case, the learned judges put on the words contained in the second clause of article 179 a construction which they were not intended to, and could not, bear. In the same year in which Lutful Huq v. Sumbhudin Pattuck was decided a contrary view had been taken by the Allahabad High Court in Sheo Prasad…(Judgment-Debtor); v. Anrudh Singh…(Decree-Holder).. In 1891 the High Court of Bombay in Jivaji v. Ramchandra followed the Allahabad and dissented from the Calcutta decision. In 1893 a Division Bench of the Calcutta High Court itself, of which Comer Petheram, C.J, was a member, expressed doubts as to the correctness of the earlier decision vide Baikanta Nath Mittra v. Aughore Nath Bose and in 1927 another Division Bench, in express terms, dissented from it—vide Fakir Chand Mandal v. Daiba Charan Parni. This latter decision was approved by Rankin, C.J, in Profulla Kumar Basu Srimati Sorojbala Basu. Shortly before this, the point had come before this High Court in Rai Brijraj… v. Nauratan Lal…. and Chamier, C.J, had relied on Baikanta Nath Mittra v. Aughore Nath Bose and had dissented from Lutful Huq v. Sumbhudin Pattuck. The diligence of Mr. Nandlal Untwalia, who appears for the respondents, has also brought to our notice similar decisions of the Judicial Commissioner in the Central Provinces and of the Lahore High Court.

The question as to whether a more extended meaning can be given to the word “decree” in clause (2) of article 182 arose in a more acute form in consequence of the amendments made in 1908 in the Transfer of Property Act and the Code of Civil Procedure. Until 1908 a mortgagee, who had obtained a preliminary decree for sale, was, on the expiry of the period fixed for the payment of the mortgage money, entitled under section 89 of the Transfer of Property Act to apply to the court for an order absolute for the sale of the mortgaged property. In 1908 section 89 of the Transfer of Property Act was repealed and Order 34, rule 5 of the Code of Civil Procedure was enacted under which a mortgagee was required to obtain a final decree for sale, and, when that decree was passed, to apply in due course to levy execution on it. In 1927 in Somar Singh v. Deonandan Prasad Singh a Division Bench of this Court was called on to decide whether an application for the execution of a final decree in a mortgage suit was not barred by limitation in spite of the fact that a period of more than three years had elapsed between the passing of the decree and the making of the application. The preliminary decree was passed on the 23rd of August, 1921, and the final decree on the 28th of October, 1922. In the interval an appeal against the preliminary decree was preferred and was ultimately dismissed on the 29th of October, 1925. The application for execution of the final decree was made on the 2nd of February, 1926, that is, more than three years after the final decree was passed, but within three years after the dismissal of the appeal against the preliminary decree. Kulwant Sahay and Ross, JJ., 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 their decision was rejected. The decision was followed by Venkata Ramana Rao, J., of the Madras High Court in P.P Koyakutti v. A Veerankutti and an appeal under the Letters Patent against his decision was dismissed. Prior to this, however, another learned Judge of the Madras High Court sitting singly, Madhavan Nair, J. in Ahammad Kutty v. Kottekkat Kuttu had taken a contrary view. Since then a contrary view has also been taken by a Division Bench of the Bombay High Court in Mahadeo Bhimasankar Madhave v. Fatumiya. Kulwant Sahay, J., in Somar Singh v. Deonandan Prasad Singh observed: “Clause (2) of article 182 prescribes ‘where there has been an appeal the date of the final decree or order of the appellate court or withdrawal of the appeal”. 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 was 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, Observed: “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”. To say that the validity of a final, decree in a mortgage suit is imperilled by an appeal being preferred from the preliminary decree is tantamount to saying that, in consequence of the preferring of that appeal, questions at issue in the suit are still sub judice between the parties. As I have already said, one of the two principles underlying article 182 of the Limitation Act is that, so long as any question at issue in the suit is still sub judice between the parties, a plaintiff who has obtained a decree ought not to be compelled to levy execution on his decree, and that as against him limitation, ought, not to begin to run until all such questions have been finally decided. If, therefore, the language used in article 182 is capable of bearing a construction which would enable the holder of a final decree for the sale of the mortgaged property to defer applying for execution of his decree until a period of three years after the decision of an appeal against the preliminary decree is about to expire, such a construction ought to be put on it. With the greatest respect, however, I entertain much doubt as to whether the construction put by Kulwant Sahay, J., is a construction which the words themselves are capable of bearing, and, if, as Madhavan Nair, J., in Ahammad Rutty v. Kottekkat Kuttu pointed out, it is open to the decree-holder, instead of applying to levy execution on the final decree, which he has already obtained, to apply for a fresh final decree to be passed, there is the less reason to have resort to an unduly forced construction. Dawson Miller, C.J, while endorsing the test applied by Kulwant Sahay, J., also observed: “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 contained in the preliminary decree”. This suggests that His Lordship was not prepared to give a more extended meaning to the word “appeal” than was absolutely necessary for the purposes of that particular case.

The decisions of this Court to which I have, just referred are of importance only in so far as in them, for the first time since 1879, a gloss was put on the word “appeal” as it occurs in clause (2) of article 182 and, in consequence of them, a further and much more serious gloss was put on that word, in certain decisions of the High Court of Madras. The decisions in question are Nanduri Sriramchandra Rao v. Chintamani-Bhatla Venkateshwara Rao, A Verran Kutti v. P.P Koyakutti and Thandavaroya Gramani v. Arumughamudali). In each of them another decision, of this Court, namely, Firm Dedhraj Lachminarain v. Bhagwan Das was cited and relied on. In that case, as also in two of the three Madras cases, the question that arose was the question which we now have to decide, namely, whether, in the event of an application being made to have an ex parte decree set aside and an appeal being preferred against an order rejecting the application, the period of limitation for the execution of the decree is to be computed from the date of the ex parte decree or from the date of the order of the appellate court finally dismissing the application under Order IX, rule 13 of the Code of Civil Procedure. Courtney Terrell, C.J, and James, J., held that limitation did not commence to run before the order of the appellate court affirming the order rejecting the application to have the ex parte decree set aside. In doing so, Courtney Terrell, C.J, expressed the opinion that the long series of decisions to the contrary had been impliedly overrulled by the decision of their Lordships of the Judicial Committee in Nogendra Nath Dey v. Suresh Chandra De. I will defer, for the moment, examining this point or dealing with the reasoning contained in the Judgment of the learned Chief Justice as Mr. S.N Dutta for the appellants did not support that reasoning in its entirety and relied mainly on the Madras decisions to which I have just referred. The argument put forward by Mr. Dutta was in short, that an appeal against an order rejecting an application to have an even ex parte decree set aside is an order made in an appeal in the suit which is likely to affect the decree sought to be executed. It must be conceded that, if the decisions of the Madras High Court are correct, there is much substance in the argument put forward by Mr. Dutta. In Nanduri Sriramchandra Rao v. Chintamanibhatla Venkaieshwara Rao King, J., expressed the opinion that “appeal” 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”. Kulwant Sahay, J., had taken the view that the word “appeal” ought to be construed as meaning an appeal which results in the decree of which execution is sought being imperilled, and, as I have already said, an attempt to so construe the word can be in stifled by one of the two principles underlying article 182. No such justification, however, exist for putting on the word “appeal” the more extended meaning given to it by King, J. It is quite clear 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 judicce unless and until the ex parte decree is set aside and the suit is ordered to be reheard.

If the intention of the legislature was that, when an appeal was preferred against an order declining 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. There are however, even more serious difficulties in the way of imputing such an intention to it. In Firm Dedhraj Lachminarayan v. Bhagwan Das Courtney Terrell, C.J, expressed the opinion that an application to have an ex parte decree set aside was in essence an application for review of judgment. The law of limitation is part of the law of procedure and the existing Limitation Act and Code of Civil Procedure were enacted, by the legislature in one and the same session. The provisions in the one statute must he read along with the provisions in the other. Now, the expression “review of judgment” occurs also in sections 5 and 12 and in articles 161, 162 and 173 of the limitation Act and quite clearly there hears exactly the same meaning as it does in Order 47 of the Code of Civil Procedure. How can it be said that in using it in article 182, the legislature intended it to bear a very different, meaning? There is the further difficulty pointed out by Fazl Ali, J., in Sheikh Mohammad Naqir v. Sheikh Alauddin Ahmad*, namely, that the words “where there has been a review of judgment” cannot mean “where there has been an application for review of judgment”. Courtney Terrell, C.J, was of opinion that when an application for review of judgment was rejected, clause (3) of article 182 applied and that, when such an application had been granted and an objection taken by way of appeal was later Sustained, clause (2) applied. Mr. G.C Mukharji, who appears for the appellants in the second appeal in which this reference has been made and whom we, therefore, permitted to address us and who took a somewhat different line to that adopted by Mr. Dutta, was unable to support this part of the judgment of the learned Chief Justice. Mr. Mukharji suggested, that in the latter case clause (3) and not clause (2) applied, the order of the appellate court declining to allow a review being the decision passed, on review. In such a case, Mr. Mukharji asked, what was the starting point for limitation if it was not the date of the order allowing the objection taken to the granting of the application for review? I see no difficulty in this, When a trial court decides to review its judgment an entry is made in the suit register and its order operates as a stay of execution. If and when an objection to that order is upheld on appeal, the stay is automatically vacated. Limitation runs from the date of the decree but under section 15 of the Act the decree-holder is entitled to exclude the period during which he has been prevented from executing his decree. The argument put forward by Mr. Mukharji may be more logical but it is, in my opinion, no less unsound.

The judgment of Sir Courtney Terrell, C.J, proceeds on the assumption that the long and uniform series of decisions going back at least to 1878 were impliedly overruled by their lordships of the Judicial Committee in Nagendra Nath Dey v. Suresh Chandra Dey. With the greatest respect, I should myself have thought it hazardous to make such an assumption when not a, single one of the decisions was referred to and when the difficulties of construction in the way of taking a view different to that taken in them are so patent. Apart from this, it is, I think plain that; the point which their Lordships of the Judicial Committee had to consider was not at all the point with which we are concerned now. A final decree in a mortgage suit was obtained by certain co-mortgagees, who had impleaded the other co-mortgagees in the suit as defendants. A question arose as between the plaintiffs and these defendants and what purported to be an appeal was preferred by the former against the decision of the trial court on that question. In of this appeal, while the co-mortgagees were made respondents the other defendants, that is, the judgment-debtors under the decree, were not. The appeal was dismissed as incompetent. When the decree was put into execution it was contended by the judgment-debtors that the application was barred by limitation and the High Court of Calcutta upheld this contention on the ground, mainly, that it could not be said that there had been any appeal as the decree as a whole had never been imperilled. The Judicial Committee reversed this decision on the ground that, although the appeal was incompetent and although the judgment-debtors under it were not made parties, it had nevertheless been entertained and must be regarded as an appeal within the ordinary grammatical meaning of the word which was the meaning that it had in clause (2) of article 182. The exact scope and effect of the judgment of Sir Dinshab Mulla have been the subject of elaborate decisions of the High Courts of Calcutta and Allahabad in Harish Chandra Chowdhury v. Dines Chandra Chwdhury and Kunwar Bahadur Singh v. Sheo Shankar. It will serve no useful purpose for me to repeat what has been said there. It is enough for me to say that I respectfully concur in the reasoning contained in the judgment of B.K Mukharji, J. Mr. Nan dial Untwallia, for the respondents, has drawn our attention to a very recent decision of the Supreme Court which, he suggests, is conclusive on the point before us. In Bhawanipore Banking Corporation, Ltd. v. Gouri Shankar Sharma, affinal decree in a mortgage suit was passed on the 22nd of December, 1941. No attempt was made, to put the decree into execution until the 9th of April 1945. The reason was that the judgment-debtors under the decree had made an application under section 36 of the Bengal Moneylenders Act. This application was dismissed for default in prosecution and an application under Order 9, rule 9 of the Code of Civil Procedure to have it restored was dismissed: An appeal was preferred against the latter order and this appeal too was dismissed on the 3rd July, 1944. It was contended on behalf of the decree-holder that limitation did not commence to run until the 3rd of July, 1944 and this contention was overruled. Fazl Ali, J., expressed the opinion that the application under Order 9, rule 9 did not involve a review of the judgment there by negativing the argument which commended itself to Courtney Terrell, C.J, and went on to point out that the word “appeal” in clause (2) of article 182 meant an appeal from the decree of which execution was sought, thereby affirming the series of decisions which Courtuey Terrell, C.J, had taken to have been impliedly overruled. The point taken by Mr. Nandlal Untwallia for the respondents was, in my opinion, a sound one. I would answer the question that has been referred to us in the negative and say that Rai Brijrai v. Nauratan Lal was rightly decided and that Firm Dedhraj Lachminarayan v. Bhagwan Das is not good law.

Ramaswami, J.:— I agree that the Question referred to the Full Bench should be answered in the negative, that Rai Brijraj… v. Nauratan Lal…. is still good law and that Lachminarayan's case is wrongly decided and should be overruled.

Sarjoo Prasad, J.:— I entirely agree and have nothing further to add.

K.D

Reference answered.