Chhangani, J—This is a defendants appeal under O. 43, R. 1(u) of the Code of Civil Procedure against the appellate order of the Additional District Judge of the former State of Ajmer dated 30.7.1956 reversing the decision of the original court on the point of limitation in a money suit.

2. The relevant facts, for the proper appreciation of controversy between the parties may be stated in a little detailed manner as follows :—

The plaintiff Seth Ramswarup carries on business at Naya Nagar. The defendants entered into some transactions of purchase and sale of cotton-seeds, til, gur and makki and silver with the plaintiff in the year 1942. A sum of Rs. 1896/15/-was found due to the plaintiff from the defendants and was acknowledged by him on 25th of April, 1946. There were subsequent transactions between the parties ; some resulting in losses and others in gains. The defendants made some payments. In the end the plaintiff became entitled to recover Rs. 2,430/11/3 on 24.12.48. On 24th December, 1948, the plaintiff took steps to recover his amount through arbitration proceedings through the Chamber Sarafa, Naya Nagar. The arbitrators after enquiry gave an award in favour of the plaintiff for an amount of Rs. 2336/13/- on 22nd August, 1951 and informed the parties accordingly. An award was filed in the court of Sub Judge, Naya Nagar for passing a decree in terms of the award. But the Sub Judge, vide his order dated 13th May, 1952, set aside the award. An appeal by the plaintiff against the order of the Sub Judge setting aside the award was dismissed by the District Judge, Ajmer, on 8th of November, 1952, and further revision to the Judicial Commissioner met the same fate on 16th of February, 1953. Thereafter, the plaintiff filed the present suit claiming a decree for Rs. 2489/6/9. He pleaded that he was prosecuting his claim through the arbitrators and thereafter in the court where the award was filed and subsequently before the appellate and revisional court and claimed exclusion of the period taken before the arbitrators and in the court of the first instance, which set aside the award and thereafter, in the appellate and the revisional court. The defendant opposed the plaintiffs suit and, inter alia, pleaded the bar of limitation. The trial court framed a number of issues; issue; no. 8 being on the question of limitation. It was framed as follows : —

"Is the suit within time ? "

3. The trial court held that the plaintiff was entitled to the exclusion of the period up to the date of the trial courts order setting aside the award but he is not entitled to the exclusion of the period taken in filing an appeal before the District Judge and a further revision before the Judicial Commissioner and in this view of the matter, he held the plaintiffs suit as barred by limitation and dismissed it.

4. On an appeal by the plaintiff, the Additional District Judge, Ajmer came to a contrary conclusion. He held that the plaintiff is entitled to exclude the period which was taken in prosecuting his appeal and revision against the order of the court of the first instance setting aside the award. He, consequently, reversed the decision of the trial court, but as the period taken in appeal and revision had to be ascertained, vide his order dated 3Q.7.1956, he remanded the case to the trial court for ascertaining that period and deciding the question of limitation after giving benefit to the plaintiff of the period taken in appeal and revision.

5. The defendants have filed the present appeal and challenged the order of the Additional District Judge. The plaintiff-respondent in spite of notice of appeal did not appear in this Court and the appeal was heard ex parte.

6. Shri C.L. Agrawal addressing on behalf of the appellant has very vehemently contended that the word court in Sec. 37 sub-sec. (5) can only mean the court of the first instance and cannot include an appellate court or a revisional court and, therefore, the period spent subsequent to the order of

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