Fazl Ali, J.:— This is an appeal by the decree-holders whose application for execution has been dismissed on the ground of limitation. It appears that the decree which is sought to be executed was passed by the trial Court on 10th October 1931. From this decree an appeal was preferred: before the District Judge on 11th January 1932 on what appears to have been insufficient court-fee and the learned District Judge, after issuing notice to the respondent and hearing the parties, dismissed the appeal on 19th April 1932. The present application for execution being made by the decree-holders on 5th April 1935, the Court of first instance, before whom the plea of limitation was raised on behalf of the judgment-debtors, held that the order of the District Judge dated 19th April 1932 rejecting the appeal was a decree within the meaning of Section 2(2) of the CPC, and that accordingly time would run from that date under Article 182(2), Lim. Act. This decision was however reversed by the learned District Judge on appeal who held that time would run from the date of the original decree and the execution was barred. The decree holders have now preferred this second appeal.
2. Now it appears that the attention of the learned District Judge was not drawn to the decision of the Judicial Committee in 59 IA 2831 wherein upon a construction of Article 182(2) which admittedly governs this case it was held that an application by a party to an Appellate Court to set aside a decree or order of a Court subordinate thereto is an “appeal” even though (a) it is irregular or income tent, or (b) the persons affected by the application to execute were not parties and did not imperil the whole decree or order. Sir Dinshah Mulla who delivered the opinion of the Judicial Committee in that, case, after dealing with the facts of that case, observed as follows:
Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon tbs plain words of the Article: ‘where there has been an appeal,’ time is to run from the date of the decree of the Appellate Court. There is, in their Lordships' opinion no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say.
3. This decision has been distinguished by the learned advocate for the respondent on the ground that in the case which was before the Judicial Committee the appeal which was ultimately rejected as being irregular in form and insufficiently stamped had been pending in the High Court for nearly two years after being admitted and it was only at the final hearing that it was determined that the appeal was incompetent. This was also the reason given by the learned District Judge for distinguishing two other decisions which were cited before him on behalf of the decree-holders, one of the Patna High Court in 11 Pat 4302 and another of the Calcutta High Court in 74 IC 679.3 In 11 Pat 430 it was held that:
The order of dismissal of an appeal as being time-barred is an order or decree of the Appellate Court coming within the operation of Article 182(2), Limitation Act, 1908, and a fresh period of limitation begins to run from the date of such order or decree.
4. Again in 74 IC 679 it was held that:
The word ‘appeal’ in Article 182(2) of the Schedule to the Limitation Act should not be restricted to mean bona fide appeal. The fact that there was an appeal of which the Appellate Court had seisin and which was determined by a judgment of that Court, is sufficient to bring the provisions of Article 182(2) of Sch. 1, Limitation Act, into operation and the period of limitation for the execution of the decree would run from the date of the final decree or order of the Appellate Court.
5. The learned District Judge after distinguishing these cases on the ground that both the appeals had been admitted in the first instance and were rejected only at the final hearing, proceeded to rely on 6 All 4384 which seemed to him to cover fully the facts of the present case. In this case it was held that when the application for appeal was not admitted on the ground of deficiency of the court-fees, it could not be said that there has been an appeal or a final decree or order of the Appellate Court within the meaning of Article 179(2), Limitation Act, so as to give a fresh period from which limitation for execution of the decree is to run.
6. The authority of this case seems to have been doubted in 7 All 42,5 but even assuming that Article 182 should be given the restricted meaning which is sought to be put on it by the learned District Judge, his decision cannot be supported. It appears that in the present case the appeal had been duly registered as Appeal No. 18 of 1982 and the order of the Appellate Court rejecting the appeal was passed after notice to the parties and on hearing them. In these circumstances I think that the conditions requisite for the application of Clause (2) of Article 182 are satisfied and the execution is not barred. I would therefore allow this appeal with costs, set aside the order of the learned District Judge and restore the order of the Court of first instance.
Rowland, J.:— I agree. There was for some time a conflict of opinion in the Courts in India as to whether in spite of the presentation of an appeal and in spite of its disposal by the Appellate Court, it should be held for the purposes of Article 182 that there had been nevertheless in the eye of law no appeal and no appellate decree. The amendment made in Article 182 in 1927 establishes that any final order of the Appellate Court disposing of the appeal will furnish a starting point for limitation and the decision of the Privy Council in 59 IA 283 confirms the line of authority which runs through 9 Cal 100,6 16 Cal 2507 and the decision of this Court in 11 Pat 430. In the first of these cases limitation was held to run from the final order of the Appellate Court notwithstanding that the substance of the Appel, late Court's decision had been that no appeal lay to it. It was held in 16 Cal 250 that even if an appeal is rejected as being time, barred, the order of the Appel, late Court rejecting it will still be the starting point for limitation and that case is on all fours with the decision of our own Court to the same effect in 11 Pat 430. Since the decision of the Privy Council in 59 IA 283 it was again argued in this Court in 18 PLT 2318 that the words “where there has been an appeal” should be given a restricted interpretation; but though this contention found favour with a single Judge who heard the appeal from the District Judge his view was dissented from by a Division Bench which applying and following the Privy Council decision, confirms the line of authority which gives the words quoted their fall meaning.
S.C/R.K
7. Appeal allowed.