Knox and Piggott, JJ.:— This is a decree-holder's appeal. The essential facts are the following:—On May 23rd, 1893, the decree of the first court was passed against one Muhammad Malih. On February the 15th, 1894, this decree was confirmed by the District Judge on appeal. A second appeal was pending when Muhammad Malih the appellant died. An application was presented by one Mubarak Husain who claimed to be his legal representative, but on the 29th of March, 1897, the High Court held that there were other heirs of Muhammad Malih, namely, his daughters, who should have been brought on the record. The order thereupon passed was as follows:—“Ordered and decreed that this appeal do abate and the appellant pay Rs. 83, costs incurred in this Court, and the costs in the lower court be paid as awarded by the lower court.” The application for execution out of which this appeal arises was presented on the 14th of August, 1907, and the point for determination is whether the said application is barred by limitation under the provisions of the latter part of section 230 of the Code of Civil Procedure Act XIV of 1882. The provisions of the said section, on the face of them, appear to be intended to allow a period of 12 years' limitation, in the case of an appeal, from the date of the decree of the appellate court. The courts below have held that this case is governed by the ruling of this Court in Fazl Husain v. Raj Bahadur . This was in any case a ruling under article 179 of the second schedule to the Indian Limitation Act (XV of 1877). It seem to have been doubted by a Judge of this Court in Kewal v. Tirhha , and is difficult to reconcile with the principle which appears to underlie such rulings as Rup Singh v. Mulchraj Singh and Akshoy Kumar Nundi v. Chunder Mohun Chathati . In any case there seems to us clearer authority on the opposite side in a ruling of the Calcutta High Court which be as directly upon the section now under consideration. We refer to Mahomed Mehdi Bella v. Mohini Kanta Saha Chowdhry . It could not fairly be contended that the decree of the High Court of March 29th, 1897, was incapable of execution, at least in respect of the costs awarded against the appellant, and the incongruity of breaking up a single decree into a portion still capable of execution and a portion barred by limitation appears considerable. It seems to us that under the terms of section 230 of Act XIV of 1882, as well as on the balance of authority, the decree-holder in this case is entitled to the benefit of 12 years' period of limitation calculated from the 29th of March, 1897, when the final decree of the High Court was passed, which had the effect of affirming the decrees of the courts below. We therefore accept this appeal, set aside the decrees of the courts below and direct the court of first instance to proceed with the execution of the decree. The appellant will get his costs.
Appeal allowed.