Kulwant Sahay, J.:— This is an appeal by the decree-holder against an order of the District judge of Saran dismissing his appeal against an order of the Subordinate Judge by which certain objections to the execution of the decree were allowed and the execution case was dismissed. The facts are shortly these:—

The Maharajaothiraj of Darbhanga along with certain other persons is the owner of a village Sohagpur in the district of Muzaffarpur there is, another village called Chanchalia which adjoins Sohagpur. This village, Chanchalia is khasmahal property and is temporarily settled with settlement-holders from time to time, the case of the Maharajadhiraj and the other proprietors; of Sohagpur was that about 73 bighas of land belonging to Sohagpur had been incorporated in the village Chanchalia by the defendants in the suit in the year 1908. Persons then in possession of Chanchalia as the settlement-holders were Bahuria Devapati Kuer and others and they were hide defendants as the proprietors of Chanchalia under the temporary settlement from Government. That suit was partially decreed in favour of the plaintiffs and it was held that about 28 bighas of land of Sohagpur had been encroached upon and amalgamated with Chanchalia. The decree as regards the declaration of title and possession was made in favour of the plaintiffs and the question as regards the ascertainment of mesne profits was left for determination in a subsequent proceeding. The amount of mesne profits was subsequently determined and a decree was passed in favour of the Maharajadhiraj of Darbhanga and the other plaintiffs in the suit against Bahuria Devapati Kuer on the 27th June, 1921. Against this decree of the Subordinate Judge Bahuria Devapati Kuer preferred an appeal before the District Judge on the 31st August, 1921. This appeal was admitted on the 4th November, 1921, and remained pending for about two years until the 14th May, 1923. In the meantime Bahuria Devapati Kuer died and on the 8th November, 1922, Babu Tejpratap Singh, the father of the respondent in the present appeal, applied for substitution of his name as the appellant in place of Bahuria Devapati Kuer on the ground that he was the next reversionary heir of her husband Krishna Bahadur Singh. Tejpratap Singh was accordingly substituted on the record of the appeal as an appellant on the 16th November, 1922. Thereafter on the 14th May, 1923, the appeal originally preferred by Bahuria Devapati Kuer was dismissed on the ground that it was barred by limitation. The first application for execution was filed in the Court of the Subordinate Judge of Muzaffarpur on the 12th May, 1926, against Tejpratap Singh. Notice under Order XXI, rule 22, of the Code of Civil Procedure was ordered to be issued and there is a note in the order-sheet to the effect that the notice had been served and thereupon according to the application of the decree-holder the decree was sent for execution to the Court of the Subordinate Judge of Saran by an order of the 8th June, 1926. Tejpratap Singh died after the order of transfer of the decree. On the 19th November, 1928, the decree-holder Maharajadhiraj of Darbhanga made an application before the Subordinate Judge of Saran for execution of the decree as against the sons of Tejpratap Singh. Various objections were taken by the heirs of Tejpratap Singh to the execution of the decree. One of the objections was that the application for execution was barred by limitation. The second objection was that the decree was a personal decree against Bahuria Devapati Kuer and could not be executed against them as representing the reversionary heirs of the husband of Bahuria Devapati Kuer and against the properties or the estate of her husband. We are not concerned with the other objections raised, as these two objections are sufficient to dispose of the present appeal. The learned Subordinate Judge allowed these objections and dismissed the application for execution. This order has been upheld on appeal by the learned District Judge and the present appeal has been preferred by the decree-holder, the Maharajadhiraj of Darbhanga.

The first question is whether the application for execution was barred by limitation. The question of limitation has been raised by the objectors on the following grounds. The decree which is really under execution is the decree of the 27th June, 1921, passed 1 by the Subordinate Judge of Muzaffarpur. The first application for execution before the Subordinate Judge of Muzaffarpur was made on the 12th May, 1926, which was more than three years after the date of the decree and the present execution, therefore, although made within three years of the first execution, was also barred inasmuch as the first execution was barred. To this the reply of the decree-holder is that time for applying for execution began to run not from the date of the decree of the Subordinate Judge, namely, the 27th June, 1921, but from the date of the decree of the appellate court which was the 14th May, 1923. Secondly, it is contended that even assuming that the first execution filed on the 12th May, 1926, was barred by limitation, as there was an order of the Muzaffarpur court to the effect that the execution do proceed and the decree was transferred for execution to the court at Saran, it was no longer open to the objectors to contend that the first application for execution was barred by limitation.

As regards the first point I am of opinion that the contention of the decree-holder is sound. Under Article 182 of the Limitation Act the period of limitation for the execution of a decree is three years to be computed from various dates. One of these dates is given in clause (2) in the third column which says

“where there has been an appeal the date of the final decree or order of the appellate court or the withdrawal of the appeal.”

It is contended on behalf of the respondent that in order that the decree-holder may take advantage of this provision in the Limitation Act, it must be shown that the appeal was a competent appeal and that the order disposing of the appeal was one which disposed of the appeal on merits. In my opinion there is no justification for this contention. What Article 182 provides is that the period of limitation is to be computed from the date of the final decree or order of the appellate Court where there has been an appeal. There can be no doubt that there was an appeal in this case by Bahuria Devapati Kuer and that appeal was disposed of by the order of the 14th May, 1923. In fact a decree was prepared dismissing the appeal on the ground of limitation. The Article speaks of the “decree or order” and it does not say that decree or order must be passed in an appeal which was a competent appeal. Mr. Bhubaneshwari Prasad Sinha on behalf of the respondent argues that Article 182 must be read along with section 3 of the Limitation Act. Section 3 provides—

“Subject to the provisions contained in sections 4 to 25 (inclusive) every suit instituted, appeal preferred and application made, after the period of limitation prescribed therefor by the first schedule shall be dismissed, although limitation has not been set up as a defence”.

The argument is that this section speaks of “appeal preferred” and when in Article 182 it is said “where there has been an appeal” it must be understood that an appeal has been preferred within the meaning of section 3.

Now, as to how an appeal is to be preferred is provided for in the Code of Civil Procedure. Order XLI, rule 1, provides the procedure as to how an appeal is to be preferred. All that it says is that the appeal should be preferred in the form of a memorandum presented to the Court and the memorandum should be accompanied by a copy of the decree appealed from and (unless the appellate Court dispenses therewith) of the judgment on which it is founded. Sub-rule (2) merely provides as to what the contents of the memorandum of appeal should be. Therefore, if the provisions of Order XLI, rule 1, are complied with and a memorandum of appeal is presented to the Court, such a presentation of a memorandum of appeal is preferring an appeal. Under rule 3 of Order XLI the memorandum of appeal may be rejected on certain grounds. Limitation of the appeal under the Indian Limitation Act is not one of, the grounds upon which a memorandum of appeal is to be rejected. If the provisions of Order XLI, rule 1, are complied with, then the appellate Court is bound to receive the memorandum. The question as to whether the appeal is barred by limitation or not is a question which has to be decided by the Court to which the appeal is preferred and when that question is decided and it is found that the appeal is barred by limitation, then an order will be made or a decree will be passed dismissing the appeal. Such an order or decree will come within the operation of Article 182, clause (2), of the Indian Limitation Act and a fresh period of limitation will begin to run from the date of such order or decree. This was the view taken by the Calcutta High Court in Akshoy Kumar Nundi v. Chunder Mohun Chathati. The learned Advocate for the respondent relies upon two decisions of this Court in Ragho Prasad Singh v. Jadunandan Prasad Singh and in Krishna Dayal Gir v. Abdul Gaffur. Now, in Ragho Prasad Singh's case the question as it has been raised in this appeal was not raised and adjudicated upon. All that was said in that case was that the appeal had been properly presented and was within time, but whether an appeal filed out of time would give a fresh start of limitation was not considered in that case. As regards the decision in Krishna Dayal Gir v. Abdul Gafur that was a case to set aside a revenue sale. Under the provisions of Act XI of 1859 it was necessary that grounds which were taken in the civil suit for setting aside the sale should have been specified in an appeal preferred before the Commissioner. It was found in that case that the appeal to the Commissioner had been presented after the period of limitation and therefore there was no appeal and therefore the suit was barred. That is absolutely a different question from what has been raised in the present case. Moreover, the decision in that case proceeded on a different ground and not on; the ground that the appeal which was presented before the Commissioner was no appeal at all. As was observed by Mookerjee, J. in Mir Waziruddin v. Lala Deoki Nandan “no useful purpose is likely to be served by a detailed examination of cases decided upon the construction of a different statute which has no real analogy to the provisions we have to consider”. I am, therefore, of opinion that the period of limitation in the present case must be computed from the date of the appellate decree which was the 14th May, 1923, and the first application which was filed on the 12th May, 1926, was therefore clearly within the period of limitation. In this view of the case it is not necessary to consider the second question raised in the case, namely, whether the order for issuing notice under Order XXI, rule 22, and the order directing the execution to proceed will operate as res judicata on the question of limitation of the first application for execution, although it seems clear that having regard to the fact that an order had been made by the Muzaffarpur Court that execution do proceed and that the notice under Order XXI, rule 22, had been served the objectors in the present case will be debarred from raising the same question in the second execution before the Subordinate Judge at Saran.

The next question is whether the execution can proceed against the present objectors who are the legal representatives of the next reversionary heirs of Krishna Bahadur Singh. Now, there is nothing on the record to show that the widow Bahuria Devapati Kuer was sued in her capacity as representing the estate of her husband. As I have already said, village Chanchalia forms a part of the Government estate and it used to be temporarily settled with settlement-holders. There is absolutely nothing on the record to show that the husband of Bahuria Devapati Kuer was the settlement-holder of this village before his death. It was found in the title suit in which the decree in execution was passed that the last settlement of the village Chanchalia was made on the 14th July, 1904. Krishna Bahadur Singh had died in 1306 Fasli which would be before the last settlement of 1904. The settlement was, therefore, taken by Bahuria Devapati Kuer and there is nothing to show that this settlement was taken by her in her representative capacity as representing the estate of her husband. The dispossession alleged by the plaintiff which gave him a cause of action for the suit was in 1908 and the allegation was that he had been dispossessed by Bahuria Devapati Kuer and the other defendants in the suit. There is absolutely nothing to show that in this act of dispossession Bahuria Devapati Kuer was representing the estate of her husband. There being a total absence of any evidence, on the record to connect the act of dispossession of Bahuria Devapati Kuer with the estate of her husband, it is clear that the decree for mesne profits passed against her on account of illegally dispossessing the plaintiff from a portion of his village cannot be executed against any property belonging to the estate of her husband. In order to entitle the decree-holder to proceed against the estate of her husband, it was incumbent upon him to prove that the dispossession took place by a person representing the estate in a representative capacity. If the act of dispossession was by the widow, then prima facie she must be held liable for it and as she is dead, execution of the decree can be taken out only against such persons as have in any way taken the personal assets of the widow and not against the persons representing the estate as reversionary heirs of the husband. As the present application is directed against the objectors in their capacity as reversionary heirs of Krishna Bahadur Singh and the property belonging to the estate of Krishna Bahadur Singh is sought to be attached and sold, it is clear that the execution cannot proceed. I am, therefore, of opinion that the view taken by both the Courts below upon this point is correct and the execution as against the estate must be dismissed on this ground.

There is, however, one point which deserves consideration. As I have said, after the death of Bahuria Devapati Kuer Tej Pratap Singh applied for substitution. He was substituted in the appeal and a decree was passed dismissing the appeal and costs were awarded to the respondent in that appeal, namely, the present appellant in this appeal, against Tej Pratap Singh. The application for execution in the present case was not only as regards the amount of mesne profits awarded in the decree of the trial Court but also as regards the costs awarded to the Maharajadhiraj of Darbhanga against Tej Pratap Singh by the appellate Court. In so far as the execution of the decree for costs is concerned, the objectors can possibly have no objection to raise. The only objection taken is that in the application originally filed before the Subordinate judge of Muzaffarpur the execution was sought in respect of the decree of the trial Court and not of the appellate Court. On looking, however, to the execution petition it appears that the execution was sought not only in respect of the decree of the trial Court but also of the appellate Court. In fact it was the only decree which could be executed as the decree of the trial Court had merged in the decree of the appellate Court. In the application for execution the date of the decree of the appellate Court and the fact of the appeal having been preferred were specifically stated and the amount of costs was also clearly given in the application. In the certificate issued by the Subordinate Judge of Muzaffarpur which was sent to the Subordinate Judge of Saran the amount of costs contained in the decree of the appellate Court was included and the amount of costs in obtaining a copy of the decree was also included. We are of opinion that the execution can proceed in so far as the costs allowed in the appeal against Tej Pratap Singh are concerned.

It is contended on behalf of the respondents that Tej Pratap Singh himself was substituted in that appeal as heir of Bahuria Devapati Kuer and, therefore, execution can proceed as against the present objectors only in so far as they are in possession of the personal assets of Bahuria Devapati Kuer. This argument is cleary fallacious. The decree in the appeal was passed against Tej Pratap Singh. Therefore the legal representatives of Tej Pratap Singh, will be liable for the costs of that decree in so far as they are in possession of the assets of Tej Pratap Singh.

The result is that the objections, in so far as the execution of the decree for mesne profits awarded by the decree of the 27th June, 1921, are concerned, must be allowed and in so far as the decree for costs awarded by the appellate Court is concerned, execution will proceed. As regards the costs of this appeal, as the appeal has failed on the main point, it is clear that the respondent is entitled to his costs in this appeal.

Khwaja Mohamad Noor, J.:— I agree.

Appeal allowed in part.