JUDGMENT : In this Civil Miscellaneous Second Appeal, the only question for determination is whether E. P. No. 193 of 1950 is a fresh E. P. or is one for revival of E. P. No. 35 of 1948, which was wrongly dismissed by the Court on 27-9-1948.

2. Preliminary decree was passed on 16-9-1933 and final decree on 10-10-1936. The last E. P. 35 of 1948 was filed in 1948 and was pending when the judgment-debtors applied under S. 19 of the Madras Agriculturists Relief Act, which came into force subsequent to the passing of the final decree, for a review of the decree. This application was filed on 24-9-1948. The effect of the filing of an application under S. 19 was that the execution proceedings were stayed under S. 20. The Court, having regard to the application of the Judgment-debtors dated. 24-9-1948 dismissed the E. P. on 27-9-1948 just two days before the Michaelmas vacation.

Thereafter, the petition for scaling down was dismissed on 5-9-1949 and stay was vacated. The appellant filed E. P. 193 of 1950 on 21-2-1950 with the same prayers. The executing Court held that this was a petition for revival of the previous petition E. P. 35 of 1948. The first Appellate Court, on the other hand, took the view that S. 15 of the Limitation Act is not applicable to the case of limitation prescribed in S. 48, C. P. C. In this view, it held that E. P. 193 of 1950, being a fresh execution petition was out of time both on the ground of the non-exclusion of the time spent during the stay as well as on the ground of its being excluded because even then the application was several months out of time.

It is immaterial for the consideration of this appeal to determine whether the time spent during the stay is deductible under S. 15 of the Limitation Act, because if E. P. 193 of 1950 is treated as a fresh E. P. even then it would be out of time. That S. 15 of the Limitation Act is applicable to cases under S. 48, C. P. C. has since the judgment under appeal been authoritatively laid down by a Full Bench of the Madras High Court in Kandaswami pillai v. Kannappa Chetty, 1951-2 Mad LJ 668 : (AIR 1952 Mad 186) (A).

The whole question in this case is whether E. P. 193 of 1950 is to be treated, as a revival of E. P. 35 of 1948. In my view, it could be se treated, because the first application was dismissed without a final disposal and obviously for statistical purposes. It was for no fault of the decree-holder that the judgment-debtors applied under S. 19 of the Madras Agriculturists Relief Act. There are several authorities of this Court which establish the proposition that where a court, for no fault of the decree-holder, dismissed an E. P. wrongly, the decree-holder can apply for its revival and the dismissed E. P. will be considered to be pending. In Krishnamachari v. Chengalraya Naidu AIR 1940 Mad (B), the facts of which disclosed an unconscionable delay, Abdur Rahman J. held the E. P. to be pending. There, an application for restitution was filed on 13-11-1925 but that was returned because there was a stay of execution. Two more applications for restitution were presented in 1928 and in 1934, but it was considered unnecessary to determine the effect of those applications as the only question that fell for determination was whether the application filed on 13-11-1925, which was wrongly returned, could be revived subsequently by an application filed on 28-4-1934.

It may be stated that applications for restitution in the Presidency of Madras were treated as applications for execution and governed by Art. 182 of the Limitation Act. Abdur Rahman, J. having regard to the fact that the Court was wrong in rejecting the application of 13th Nov. 1925, held the application filed on 28-4-1934 as an application for revival of the previous application. This is supported by several other decisions of the Madras High Court.

From Pattannayya v. Pattayya, 50 Mad LJ 215 : (AIR 1926 Mad 453) (C) and Appavoo Nainar v. Lakshmana Reddi, 65 Mad LJ 305 : (AIR 1933 Mad 745) (D), it is c

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