Dhavle, J.:— This is an appeal by the decree-holders, and it arises out of execution proceedings. The judgment-debtors contended that the execution case was barred by limitation; and this contention was rejected by the Munsif but allowed by the District Judge on appeal. The suit was tried in 1931 and was dismissed by the trial Court on 8th January of that year. On 7th August following, an appeal was allowed and the suit decreed ex parte by the lower appellate Court. Upon this the defendants made an application under O. 41, R. 21, on 27th August. On 19th November the application was rejected by the lower appellate Court. Against this rejection there was an appeal to the High Court, which was dismissed on 1st September 1933. The application of the decree-holders for execution was filed on 15th November 1934, which is more than three years from 7th August 1931, the date when the appeal was allowed and the suit itself decreed, and the question raised is whether the appeal against the rejection of the application under O. 41, R. 21 which appeal was dismissed on 1st September 1933, will provide the starting point for limitation for the execution. Article 182, Limitation Act, provides a period of three years for the execution of such decrees, the starting point being (1) the date of the decree, or (2) “(where there has been an appeal) the date of the final decree or order of the appellate Court”. So far as the decree under execution is concerned there was no appeal. The proceedings under O. 41, R. 21, which were brought tip to this Court in appeal, are analogous to proceedings under O. 9, R. 13 in the case of decrees passed ex parte by the trial Court; and there are several ex-press decisions where it has been held that proceedings of that kind do not postpone the starting point of limitation. In 3 PLJ 1191 it was held by Chamier, C.J and Sharfuddin, J. that the words “where there has been an appeal” in Article 182, Limitation 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. This decision is binding on me sitting singly. Not only is it in accordance with earlier decisions from Bombay and Madras as well as Calcutta, but it has been followed in the Calcutta High Court in such cases as 54 Cal 10522 and 35 CWN 155.3 I do not think that anything said in 6 Pat 7804 regarding the case from 3 PLJ 119 has the effect of shaking the authority of that decision. The learned advocate for the appellants has however relied on two Privy Council decisions in support of the contention that the view taken in this Court must, be taken to be overruled. One of these decisions is 36 CWN 803.5 Sir Dinshaw Mulla who delivered the opinion of the Judicial Committee in this case, pointed out that there is no definition of appeal in the Code of Civil Procedure, and added that:

Their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a Subordinate Court is an appeal within the ordinary acceptation of the terms, and that it is no less an appeal because it is irregular or incompetent.

2. It is contended on behalf of the appellants that this observation covers the facts of the present case. I am unable to accept this. What their Lordships were dealing with at the time was an appeal which was irregular in form as not being an appeal against the decree of the Subordinate Judge but one against his judgment and what they decided was to overrule the view taken in such cases as 19 CWN 2876 that the ‘appeal’ contemplated in Article 182, Limitation Act, must be an appeal in which the parties to the execution, proceedings are directly interested and must be such as to imperil the integrity of the decree. Considerations of that kind do not arise here. What the appeal to the High Court imperilled was the order of the lower appellate Court rejecting the application under O. 41, R. 21 after it has allowed the appeal in the suit and decreed the suit ex parte, but it is not the rejection of that application or the appeal from that rejection that is under execution. The appeal to the High Court was not intended to set aside any decision of the Subordinate Court except the rejection of the application under O. 41, R. 21. The learned advocate for the appellants has also relied on another observation in Nagendra Nath's case that:

It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage.

3. But the only question that could be considered to be sub judice between the parties while their appeal in the High Court was pending was not the decree under execution, but whether the appellants to the High Court had been duly served with notice of the appeal, in the lower Court or had been prevented from sufficient cause from appearing when the appeal was called on for hearing. The observation of their Lordships of the Judicial Committee must, I think, be taken with the facts of the case before them, and does not seem to cast any doubt on the uniform current of decisions not only in this High Court but in all the other High Courts of the country as far as I am aware with the sole exception of 8 Cal 248,7 a case which has been repeatedly dissented from. The other case referred to by the learned advocate for the appellants is 60 Cal 662.8 The facts of that case and the point for decision in that case are entirely different from anything we have before us. But the learned advocate has relied on Sir George Lowndes's observation that:

Their Lordships think that, when an order is judicially made by an appellate Court which has the effect of finally disposing of an appeal, such an order gives a new starting point for the period of limitation prescribed by Article 182(2) of the Act of 1908.

4. This was said with reference to an order of abatement, the question for decision being whether such an order was a judicial order so as to come within the Article. The order of the High Court dismissing the appeal on 1st September 1933 was unquestionably a final order in the miscellaneous case which was based on the defendants' application under O. 41, R. 21 but I am unable to see anything in the case from 60 Cal 662 which has any bearing on the question whether the appellate order in the proceeding under O. 41, R. 21, will operate to postpone the starting of limitation for the execution of the decree of the lower appellate Court which was passed on 7th August 1931 and which is now under execution. It is impossible to read the decision of the Privy Council as shaking the authority of Rai Brijraj… v. Nauratan Lal…., which as already said, is binding on me sitting singly, and which, if I may say so with all respect, expresses the law correctly. In my opinion the view of the lower appellate Court that the execution case is barred by limitation is correct. The appeal fails and is dismissed with costs. Leave to appeal is given.

Letters Patent Appeal.

Courtney-Terrell, C.J:— The suit out of which this Letters Patent appeal arises was a money claim which was dismissed by the trial Court on 8th January 1931. The plaintiff appealed and on 7th August 1931 the appeal was allowed and the suit decreed ex parte against the defendant. The defendant made an application for restoration under O. 41, R. 21, but this was dismissed on 19th November 1931. The defendant appealed from the order of dismissal to the High Court, but the appeal was dismissed on 1st September 1933. The present application for execution was made on 15th November 1934. The judgment-debtors contended that the execution case was barred by limitation. This contention was rejected by the Munsif, but allowed by the District Judge on appeal. A second appeal by the decree-holder was dismissed by the learned Judge of this Court and the question to be decided by us is whether the execution proceedings are or are not barred by limitation, having been begun more than three years from the decree of 7th August 1931. The matter depends upon the construction of Article 182, Cls. (2) and (3), Limitation Act; and it is contended on behalf of the decree, holder appellant that the case comes either under Cl. (2) or under Cl. (3). These clauses are as follows:

2. Where there has been an appeal, the date of the final decree or order of the appellate Court, or withdrawal of the appeal, or

3. Where there has been a review of judgment, the date of the decision passed on the review.

5. In support of this contention it is urged on the one hand that the dismissal on 1st September 1933 of the Miscellaneous appeal to the High Court is within the meaning of Cl. (2), and even if this argument be not justified, that the dismissal on 19th November 1931 of the application by the judgment-debtor for restoration of the appeal comes within the meaning of Cl. (3), in either event the application for execution is within time. As to the first argument it is contended on behalf of judgment-debtor that the word ‘appeal’ in Cl. (2) refers to an appeal from the decree in the suit and to nothing else; and the decision in 3 PLJ 119 has been relied upon. The learned Judge of this Court held that this decision was binding upon him. The argument of the appellant before the learned Judge and before us was that the decision must be taken to have been impliedly overruled by their Lordships of the Privy Council in 59 IA 283. In that case one Madan Mohan sued in the Court of the Subordinate Judge to enforce a mortgage. The plaintiff claimed that the appellants (before the Privy Council) who were defendants 11 and 12 in the suit had assigned their interest in the mortgage to him. The Subordinate Judge upheld this claim and declared the liability of these defendants to pay a sum of Rs. 4,000 which they brought into Court. On appeal to the High Court a compromise was effected between the parties and a new preliminary decree was passed in terms of the compromise. Madan Mohan's claim against the appellant was disregarded and the appellants were shown as mortgage creditors for Rs. 14,000, whereupon they applied to the Subordinate Judge for the withdrawal of the Rs. 4,000 they had brought into Court. This was allowed. Madan Mohan opposed this application but his contention was overruled. He appealed to the High Court, but the appeal was dismissed. The decree by consent in the High Court divided the parties into one of decree-holders and the other of judgment-debtors. Two of the judgment-debtors paid the amount due from them under the decree. Madan Mohan who belonged to the group of decree-holders applied to the Subordinate Judge for a final mortgage decree, claiming again that defendants 11 and 12, who were grouped with him as decree-holders had assigned their interest to him. This was disallowed by the Subordinate Judge and a final decree was passed on 24th June 1920 and declared that in conformity with the judgment, defendants 11 and 12 were entitled to payment of the said sum of Rs. 14,000. On 27th August 1920, Madan Mohan appealed to the High Court and joined as parties to the appeal only, the other decree-holders and not the judgment-debtors and his appeal was insufficiently stamped. It was nevertheless heard by the High Court and was dismissed upon the merits and also on the ground of irregularity on account of the insufficient stamp. The judgment of the High Court to this effect was dated 24th August 1922, and the question before their Lordships was as to the effect of this judgment. The application for execution by sale of the mortgaged properties was dated 3rd October 1923. The respondents before the Privy Council contended that the date of the decree of the Subordinate Judge, that is to say June 1920 was the proper starting time and that the application for execution was out of time. The appellant contended that the critical date was the decree of the High Court of 24th August 1922 dismissing the appeal on the ground of irregularity and upon the merits. It was urged that the appeal, by reason of its irregularity, was not an appeal at all and also that to come within Cl. (2) of Article 182 the appeal must be one in which the whole decree was imperilled. Their Lordships referred to the difference of opinions in India and said that nothing would be gained by discussing them in detail. They said that the question must be decided upon the plain words of the Article—‘where there has been an appeal’ and stated:

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. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think the only safe guide. It is at least an intelligible rule that so long as there is any question sub judice between any of the parties those affected shall not be compelled to pursue the so often thorny path of execution which, if the final result is against them, may lead to no advantage.

6. In applying that principle to the case before us we find that there was in fact an appeal to the High Court in the matter of the judgment, debtor's application for restoration. Had the judgment-debtor been able to show that he had good grounds for not being present when the suit was decreed ex parte, the Subordinate Judge would have set aside the original ex parte decree and would have heard the case on its merits after hearing the judgment-debtor. That is to say the original decree was by the application for restoration put in peril. Similarly until the appeal of the judgment-debtor to the High Court from the Subordinate Judge's decision was decided, the suit was still in peril. Cl. (2) of Article 182 does not state in its strict grammatical construction, that the appeal must be against the decree in the suit. These are words which we are asked to read into the Article by implication and I see no ground in principle for so reading them. In conformity with the Privy Council decision that the matter must be decided on the plain words of the Article and applying the principle of the rule stated by the Privy Council so as to make it intelligible, the order of the appellate Court of 1st September 1933 should be held the proper date from which the period of limitation should start. In my opinion the contention of the appellants is correct and the case reported in 3 PLJ 119 must be considered as overruled. This view of the matter was followed in 57 Bom 3889 the facts of which may be simply related. Under a decree dated 14th December 1925 Revanshidappa and Sidramappa became entitled to recover a sum of money from Gurushantappa. On 6th April 1926 Sidramappa preferred an appeal against the decree. Meanwhile on 6th March 1926 Gurushantappa had applied for a review of the decree. This was allowed on 15th July 1926 and as a result of the rehearing on the same date and by the same judgment the amount under the decree was reduced. Revanshidappa and Sidramappa then preferred an appeal against the order granting the review but they presented no appeal against the decree of 15th July 1926. On 29th October both the appeals were dismissed as incompetent. Revanshidappa and Sidramappa assigned their rights to Nagappa who applied on 2nd September 1929 for transfer of the decree to another Court for execution. It was contended by Gurushantappa that the application was barred, not having been filed within three years from 15th July 1926. It was held that the application for execution was in time, as time began to run from 29th October 1928 the date of the dismissal of the appellate decree from the order granting the review; and in view of the Privy Council decision the Court refused to accept the contention that the appeal mentioned in Article 182, Cl. (2) must be an appeal from the original decree.

7. I agree with the learned Judge of this Court in his opinion that the case in 6 Pat 780 does not really cover the point. In that case an appeal to the High Court had been lodged from a preliminary decree in a mortgage suit but not from the final decree which was sought to be executed. In that case however the preliminary decree determined the rights of the parties in the suit and the appeal from that decree would in any case be properly regarded as within Cl. (2) of Article 182. The real distinction between Cls. (2) and (3) of Article 182 is, in my opinion, really one of the particular tribunal which passes the order by which the original decree is imperilled. If the order is made by the appellate Court, then the period of limitation under Article 182, Cl. (2) runs from the date of the appellate order. If on the other hand the order imperilling the decree is made by the original Court which passed it, then the date from which the limitation runs is the order of the original Court.

8. Now there is no essential difference between orders for restoration and orders for review. Notwithstanding the heading in O. 47, the matters dealt with in that order are reviews for which applications are made on certain specified grounds and it is true that in common parlance the term “review” is used for applications based upon the grounds specified in that Order. No Court, having once passed a judgment, can alter the terms of that judgment save upon certain specified grounds and one of those grounds is dealt with under the term “restoration”. In both cases however, the Court has first to decide whether on the ground specified, it is justified in law in reconsidering its own decision and it either allows or refuses the application for reconsideration. In some cases after the decision to reconsider it may be necessary at a subsequent and separate bearing to deal with the fresh case on its merits. In some cases the matter is dealt with at the same hearing and in one judgment the Court decides firstly whether the case should be reconsidered and secondly the result of its reconsideration. But all cases in which the Court reconsiders its own judgment are cases of review within the meaning of Cl. (3) of Article 182, Lim. Act. Applications for restoration and applications for review (using the word in the narrower sense) are, it is true, separately dealt with in the orders appended to the Code of Civil Procedure. These are mere questions of procedure and may be altered by any particular High Court; but the entire jurisdiction of any Court to interfere with its own decision once given is derived from S. 114 of the Code itself where the single word “review” is used. Therefore, in my opinion if no appeal had been preferred from the order on the application for restoration by the Subordinate Judge the date of his order would have been the starting point for limitation under Cl. (3) of Article 182, but as an appeal from this order was preferred the start of limitation is the date of the order of the appellate Court. With great respect therefore for the careful judgment of the learned Judge of this Court I am of opinion that it was erroneous and the appeal under the Letters Patent should be allowed with costs throughout.

James, J.:— I agree.

S.C/D.S

9. Appeal allowed.