The filing of an appeal by the decree-holder is a step in aid of execution and the period of limitation for execution of a decree starts from the date of the final order passed by the appellate court.

1. This appeal is brought on behalf of the judgment-debtor against an order of the Subordinate Judge of Chapra, dated 30-6-1949, rejecting certain objections to the execution of a decree.

2. Mr. Hareshwar Prasad Sinha, who argued the appeal, submitted that the Subordinate Judge was wrong in holding that the terminus a quo for limitation was 17-11-1944, on which date the High Court dismissed the appeal preferred by the decree-holders against an order of the Subordinate Judge directing that lots 2 and 3 should be sold first and, in case the sale proceeds thereof were not sufficient, lot No. 1 should be sold. That appeal was presented in the High Court on behalf of decree-holders on 26-10-1942, but the final order of the High Court dismissing the appeal was made on 17-11-1944. While the appeal was pending in the High Court, the Subordinate Judge dismissed the execution case for default on 3-3-1943. The contention of Mr. Hareshwar Prasad Sinha on behalf of the appellant is that the time for limitation starts from 3-3-1943, and the Subordinate Judge ought to have held that the present execution case filed on 17-11-1947, was barred.

3. In our opinion, the argument advanced by Mr. Sinha cannot be accepted as correct. The Subordinate Judge proceeded on the view that Sec.14, Limitation Act governed the case and the period between 26-10-1942, till 17-11- 1944, during which period the appeal was pending in the High Court, Should be excluded under the provisions of Sec.14, Limitation Act. This view cannot be supported since Sec.14 applies only to a case where the proceeding is pending in a Court which either from defect of jurisdiction or other defect of a like nature is unable to entertain it. It is manifest in the present case that the High Court had jurisdiction to entertain and dispose of the appeal preferred on behalf of the decree-holders against a direction of the Subordinate Judge with respect to the order in which certain lots were to be sold. The lower Court was wrong in applying Sec.14 to the present case; on the contrary, the proper Article to apply upon the facts of this case, is Article 182 (5), Limitation Act which provides that for the execution of a decree or order of any civil Court the period of limitation is three years from

"the date of the final order passed on an application made in accordance with law to the proper Court for execution, or to take some step in aid of execution of the decree or order."

The submission of Mr. Sinha on this point is that the High Court was not the "proper Court" within the meaning of Article 182 (5) and the appeal preferred by the decree-holders on 26-10-1942, cannot be deemed to be an application falling within the ambit of Article 182 (5). In our opinion, there is no substance in this argument. Explanation II to Article 182 enacts that "proper Court" means the Court whose duty it is to execute the decree or order, but under Section 107, Civil P. C., an appeal Court has the same powers, and is required to perform, as nearly as may be, the same duties as are conferred and imposed by the Code on Courts of original jurisdiction. Normally, the High Court does not itself execute the decrees of lower Courts. The practice is that the High Court remands the case to the lower Court with directions to execute the decree according to law on the basis of the High Courts decision, but in a proper case the High Court has power to execute the decree or order itself. Approaching the question in this way, it is clear that the present case falls within the ambit of Article 182 (5), Limitation Act and the terminus a quo for calculating the period of limitation would be 17-11-1944, when the High Court dismissed the appeal preferred by the decree-holders.

This view is supported by a decision of the Judicial Committee in -- Annamalai Chettiar V/s. Valliammai Achi, AIR 1945 PC 176 (A) in which the appellant who had obtained a decree against the respondents on 3-11-1934, presented a petition to the Co