Macpherson, J.:— This appeal is preferred by the judgment-debtor whose objection that the application in execution was barred by limitation when it was filed on the 21st June, 1929, has been rejected.

The appellant's suit no. 110 of 1918 was dismissed in 1920, his appeal to the High Court on 17th April, 1923, and his appeal to the Privy Council on the 2nd December, 1926, the last mentioned for non-prosecution.

Thus the application in execution was within time if time runs from the dismissal of the Privy Council appeal as the decree-holder considered but not if it runs from the dismissal of his appeal in the High Court, as the judgment-debtor contended in his objection. The executing court sustained the contention of the decree-holder that the starting point of limitation is the date of dismissal of the Privy Council Appeal.

The learned Subordinate Judge has dealt superficially with the matter. After mentioning that Article 182 of the Limitation Act, 1908, lays down that when there has been an appeal, limitation will run from the date of the withdrawal of the appeal, he proceeded to hold that there was

“not much difference in withdrawing an appeal and dismissing it for default”,

citing in support of his view the decision of this court in Ragho Prasad Singh v. Jadunandan Prasad, Singh. He then set out that the rulings of the Judicial Committee in Sachindra Nath Ray v. Maharaj Bahadur Singh and Abdul Majid v. Jawahir Lal relied upon by the objector did not avail him as they took no account of Article 182 of the Limitation Act, 1908.

Mr. Jagannath Prasad on behalf of the respondent admits that he cannot support the view of the lower court and in particular the dictum that withdrawal of an appeal and dismissal of it for default are practically the same for the purposes of Article 182(2) of the Limitation-Act, 1908.

At first the learned Advocate was inclined to support the decision on a different ground, that is to say, in reliance upon the words “the date of the final decree or order of the appellate court” in the Article mentioned. But eventually he found himself so pressed by the Privy Council decisions cited and the decision in Batuk Nath v. Muni Dei as to admit that the appeal must succeed.

The learned Advocate for the appellant made a careful examination of the three decisions of the Judicial Committee and the decision of this court along with the relevant rules of the Judicial Committee as they at present stand (Bentwich's Privy Council Practice, 1925) and as they stood in 1908.

The earliest decision is Abdul Majid v. Jawahir Lal. In that case an appeal against a preliminary decree in a mortgage suit and been dismissed by the High Court in 1893 and the consequent appeal to the Privy Council was admitted but was dismissed for want of prosecution on 13th May, 1901. The Courts in India held that the period of limitation to make absolute the decree for sale was twelve years under Article 180, of the Limitation Act, 1877; but the Judicial Committee held that the period of limitation was three years under Article 179 and that limitation ran not from the dismissal of the appeal for want of prosecution but from the order of the High Court confirming the decree which was “the final order of the appellate court” and which did not become merged in the order of the Privy Council. Lord Moulton who delivered the judgment observed as follows:—

“The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognized authoritatively that the appellant had not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all.”

In the case of Batuk Nath v. Muni Dei their Lordships were dealing with a case where the appeal had not been admitted. Therein they held that a dismissal for want of prosecution of an appeal to the Privy Council was not the final decree of the appellate court within the meaning of Article 179(2) of the Limitation Act, 1877, and that under that article the period of limitation in an application for execution of a decree could not be reckoned from the date of such dismissal. From the High Court decree of 12th February, 1900, an appeal had been preferred by the decree-holder to his Majesty in Council which was eventually dismissed for default of prosecution on 15th December, 1904. His assignee applied on 2nd October, 1907, for execution of the decree. Their Lordships held that the application was barred by limitation under Article 179 of the Indian Limitation Act, 1877, as the dismissal of the appeal to the Privy Council was not by a final order or decree of his Majesty in Council made in appeal. They pointed out that under rule V of the Order-in-Council of 15th June, 1853, effectual steps having not been taken for the prosecution of the appeal, the appeal stood dismissed without further order, that is to say, automatically.

Rule V of 1853 corresponds to rule 34 of the Judicial Committee Rules, 1925. In these rules, there are separate rules for withdrawal of appeals and for non-prosecution of appeals, rules 32 and 33 referring to the former and rules 34 to 37 to the latter. Rule 34 which corresponds to rule V of the Rules of 1853, deals with the case where no steps in prosecution of the appeal have been taken within a specified period from the date of the arrival of the record in England. Batuk Nath v. Muni Dei was a case governed by that rule.

Rules 35 and 36 deal with dismissal for non-prosecution after appearance but the former is concerned with such dismissal before and the latter with such dismissal after lodgment of the petition of appeal. In the present instance the dismissal was under rule 36. Accordingly summons must have been issued on the appellant and a copy of it on the respondent. The rule concludes “The Judicial Committee may, after considering the matter of the said summons, recommend to his Majesty the dismissal, of the appeal for non-prosecution, or give such other directions therein as the justice of the case may require”. The respondents appeared and asked for and received costs.

The new Code of Civil Procedure which came into operation on the 21st March, 1908, made changes in respect of mortgage suits. The law of limitation was amended by the new Indian Limitation Act of 1908 which came into force on the 1st January, 1909. Among other changes Article 179 became Article 182 with the addition of the words “or the withdrawal of the appeal” to the words “the date of the final decree or order of the appellate court” as the starting point of limitation, while Article 180 became Article 183.

In the third case which is Sachindra Nath Roy v. Maharaj Bahadur Singh and which was decided in 1921 their Lordships of the Judicial Committee held that there was no provision in the Limitation Act, 1908, so retrospective in its effect as to revive and make effective a judgment or decree which before that date had become unenforceable by lapse of time as the High Court decree had become. In the case before their Lordships the appellants had mortgaged immoveable property to the respondents who deposited the deeds by way of equitable mortgage with a firm. The appellants paid off the mortgage and the respondents executed an agreement to indemnify them against all claims in respect of the deeds. In 1905 the firm in appeal in the High Court obtained a decree against the appellants and others for the sale of the property in default of payment of the amount due upon the equitable mortgage. The appellants appealed to the Privy Council but on 2nd February, 1910, before the hearing discharged the claim upon the equitable mortgage and ceased to prosecute the appeal which on 16th April, 1910, was dismissed for want of prosecution. On 9th September, 1912, the appellants sued the respondents to recover the sum which they had paid to discharge the equitable mortgage. Their Lordships held that at the date of the payment a suit by the respondents upon the decree of 26th August, 1905, would have been barred under Article 179 of the Limitation Act, 1877, since time ran from the date of the decree and not from the dismissal of the appeal, and referred with approval to the decisions in Abdul Majid v. Jawahir Lal and Batuk Nath v. Muni Dei.

At the date of this decision the Judicial Committee Rules of 1908 were in force and they are, and in particular rule 36 is, substantially the same as the present rules which were in force in 1926. It would seem, therefore, that the view of the Judicial Committee is that not only under rule 34 but also under rule 36 the dismissal for non-prosecution of an appeal to the Privy Council even after admission and appearance of the respondents does not constitute a final decree or order of the appellate court within the meaning of Article 182(2).

In Ragho Prasad Singh v. Jadunandan Prasad Singh it was indeed held in respect of an appeal in the High Court that under Article 182(2) the period of limitation runs from the date when the appeal in the High Court is finally disposed of, and hence if the appeal is dismissed for “want of prosecution” as when the appellant failed to deposit the printing costs, the date of dismissal of the appeal gives the starting point of limitation. The learned Judges explained and distinguished the decisions in Abdul Majid v. Jawahir Lal and Batuk Nath v. Muni Dei. It was suggested that the appeal to the Privy Council in Abdul Majid v. Jawahir Lal had been dismissed automatically so that the dismissal could not be an order of his Majesty in Council within the meaning of Article 180 (now 183) of the Limitation Act. Now in the first place it is not clear that the dismissal referred to in Abdul Majid v. Jawahir Lal was automatic. It would have been so under the old rule V of 1853 corresponding to the present rule 34. But in the placitum it is represented as having been ‘admitted’ so that the dismissal could not have been under rule V. Again the appeal in the High Court was dismissed on 8th April, 1893, and the appeal to the Privy Council was dismissed over eight years later, a fact which is inconsistent with action under rule V. To my mind the dismissal was not under rule V and was no more automatic than in Sachindra Nath Roy v. Maharaj Bahadur Singh or in the present instance. It falls to be observed that the Division Bench of this Court had not before them the decision in Surendra Nath Roy v. Maharaj Bahadur Singh which was only delivered in the following year. Furthermore, the learned Judges go on to draw a distinction between the two decisions of the Judicial Committee and the case before them where the dismissal had been in the High Court. In my opinion we are not here bound by that decision of this court.

For the reasons above given I consider that the application in execution is barred by limitation. I would, therefore, decree the appeal and sustaining the objection dismiss the application in execution with costs in this court and in the court below.

Dhavle, J.:— I agree.

Appeal decreed.