Chamier, C.J:— The facts of this case are as follows: There was a suit for a declaration which was dismissed for default on 15th November, 1912, and costs amounting to Rs. 642-11-0 were awarded to the present respondent. There was an application to set aside the dismissal for default, which was dismissed on 17th June, 1913, and costs amounting to Rs. 82-7-3 were awarded to the present respondent. Then there was an appeal against the order rejecting the last-mentioned application, which was dismissed on 30th November, 1914, and costs amounting to Rs. 132-2-5 were awarded to the present respondent. Lastly, there was an application for leave to appeal to the Privy Council, which was dismissed on 6th December, 1915, and costs amounting to Rs. 80 were awarded to the present respondent. An application was made by the respondent for recovery of the costs awarded to him under the decree and the three orders mentioned above. This application for execution was presented on 11th April, 1916. There can be, no doubt, that the application was made within time as regards all the sums, except the first mentioned sum of Rs. 642-11-0. The Court below has hell that the application was that a within time with regard to that sum also, and the question which we have to decide in this appeal is whether the application is barred as regards the first mentioned sum. The Subordinate Judge relied on the decision of the Calcutta High Court in Lutful Huq v. Sumbhudin Pattuck(1). That decision can no longer be accepted in view of the later decision of the Bombay High Court in Jivaji v. Ramchandra(2) and the decision of the Calcutta High Court in Baikunta Nath Mittra v. Aughore Nath Bose(3) and other cases. It is bow settled that the words “where there has been an appeal” in the last column of Article 182, Sch. 1 of the Lim. Act mean where there has been an appeal against a decree in the suit, and cannot be held to include an appeal against an order made on an application to set aside that decree. The learned vakil for the respondent frankly admits that the authorities on this point are against him, but he contends that the case is covered by Cl. (3) in Col. 3, Article 182. He maintains that the application to set aside the dismissal of the suit for default was a review of judgment within the meaning of Cl. (3). There is no doubt authority in favour of the contention that the words “review of judgment” are not intended to be restricted only to a review strictly so called in the Code of Civil Procedure.
2. But this will not avail the respondent for it has also been held that Cl. (3), Article 182 does not apply where an application for a re-hearing or review has been dismissed: see Kurupam Zamindar v. Sadasiva(4). The intention of the Legislature seems to have been to allow further came to a holder of a decree or order for costs where there has been an application for review which has been heard and a fresh decision has been pronounced, not to allow further time where an application for re-hearing or review has been put forward on untenable grounds and has consequently been rejected or dismissed. Personally I am disposed to doubt whether the words “review of judgment” were intended to cover an application for rehearing of a suit dismissed for default, but assuming that the words were intended to cover such a case I am of opinion that in the case before us there was no decision passed on the review within the meaning of Cl. (3) in Cl. 3, Article 182, Sch. 1 of the Lim. Act.
3. For these reasons I am of opinion that the application, for execution was barred by limitation as regards the sum of Rupees 642-11-0. I would allow this appeal and modify the order of the Court below accordingly.
4. Sharfuddin, J.:— I agree.
V.S/R.K
5. Appeal allowed.
Cl. 3, Article 182, Sch. 1