The main legal point established in the judgment is the interpretation of the word 'appeal' in Article 182 of the Limitation Act, which was held to mean an appeal from the decree or order of which execution is sought.

Shearer, J.

1. The question which has been referred to this Bench for decision has been stated by Sinha and Rai JJ. thus :

"Whether the word appeal in col. 3 of Clause (2) of Article 182, Limitation Act, includes an appeal preferred against an order refusing to set aside an ex parte preliminary decree in a suit for partition in computing the period of limitation for executing the final decree passed in such a suit."

Article 182, Limitation Act, prescribes the period of limitation

"for the execution of a decree or order of any civil Court not provided for by Article 183 or by Section. 48, Civil Procedure Code."

By reason of what is contained in col. 3 of the Article, the starting point for limitation varies, according as there has or has not been an appeal or a review of Judgment or an amendment of the decree. Article 182 substantially reproduces the provisions contained in the earlier Limitation Acts of 1871 and 1877. The principles underlying all these provisions were twofold. One principle, to borrow the language used by Sir Dinshah Mulla in Nagendra Nath Dey V/s. Suresh Chandra Dey, 59 I. A. 283 at p. 288 : (A. I. R. (19) 1932 P. C. 165) is

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."

The other is that, when, on appeal, the decree or order of a subordinate Court is affirmed, modified or reversed by the High Court, the period of limitation for an application for execution of the final decree or order is the period of limitation applicable to decrees of the subordinate Court itself, and not to decrees of the High Court. Sec.19, Civil P. C. of 1859 prescribed a period of twelve years limitation for applications for the execution of decrees of a Chartered High Court, while Section. 20 prescribed a period of three years limitation for applications for the execution of decrees passed by other Courts. "When, shortly afterwards, the Court of the Sadar Diwani Adalat was abolished and its appellate jurisdiction was transferred to the High Courts, a question arose as to whether a decree of a High Court passed on appeal from a decree of a subordinate Court could be executed within twelve years or had to be executed within three years. There was a conflict of decisions on the point, and, as appears from the observations of Sir James Colvile in Kristo Kinkur Roy V/s. Rajah Burrodacaunt Roy, 14 M.I.A. 465 at p. 487 : (10 Beng. L.R. 101 P.C.), one at least of the learned Judges, who came to the conclusion that the longer of the two periods of limitation was the period applicable, admitted that his construction "involved consequences absurd in themselves, and, presumably, contrary to the intention of the Legislature." It is quite clear that it was in order to put an end to this controversy that Article 167, Limitation Act of 1871, took the form which it did and that, but for the imperative necessity of making the intentions of the Legislature clear, Article 167 might well have taken a very different form. The, reason why in col. 3 of Article 167 different starting points for limitation were prescribed was to prevent any argument being put forward that, as the decree of the subordinate Court merged in or was superseded by the decree of the High Court on appeal, the period of limitation applicable was the period applicable to decrees of the High Court and not that applicable to decrees of the subordinate Courts. "Whether the decree of the trial Court has been affirmed or has been modified on appeal or on review of Judgment is wholly immaterial in ascertaining what the starting point for limitation is. The Court executing the decree has merely to see whether, in point of fact, there has been an appeal or review of Judgment. I stress this point as, in some of the decisions in which a forced interpretation has been put on the language used in the artic