MODI, J.—This is a defendants first appeal in a suit for recovery of arrears of rent and damages.

2. A preliminary objection has been raised that the appeal is barred by time.

3. The only question which arises therefore for determination before us at this stage is one of limitation. It is necessary to mention a few dates in order to appreciate this point. The trial Court decreed the suit by its judgment dated 15th February, 1960. An application was then made to the trial Court by the defendants for setting aside the exparte decree on the 20th of March, 1960. This application was dismissed on the 8th of August, 1960. The present appeal was then filed in this Court on 19th of August, 1960, and was obviously barred by time. An application under sec. 5 of the Limitation Act was also filed by the defendants along with the memorandum of appeal.

4. The main ground made in this application is that the appellants were under the impression that the decree, which was passed against them on the 15th of Feb., 1960 in their absence, was passed really under O. 17 R. 2 of the Code of Civil Procedure, and therefore, they thought it proper to file an application to the trial Court itself for having it set aside, instead of filing an appeal to this Court, and therefore, the time taken for the disposal of this application from the 10th of March, 1960 upto the 8th of August, 1960 deserves to be condoned. It was further mentioned that the appellants had applied for a copy of the order of the trial Court refusing to set aside the exparte decree as well as of the original judgment and decree dated the15th of February, 1960 on the 9th of August, 1960 and the same had been received on the 19th of August, 1960 and the appeal was filed in this Court on the same date. Before proceeding further, it may also be mentioned that the defendants filed an appeal in this Court against the order of the trial Court refusing to set aside its decree on the 14th of September, 1960 and it is admitted before us that that appeal was dismissed in limine by a Bench of this Court on the 28th of October, 1960.

5. It is, in these circumstances, that the question of limitation falls for determination before us. We may! state at-once that if the time between the 10th of March, 1960 when the defendants filed this application for setting aside the decree of the trial Court and the 8th of August, 1960 when that application was dismissed, is allowed to them, then this appeal would clearly be within time. It has, however, been strenuously contended before us on behalf of the plaintiff respondent that the defendants cannot be allowed in law the benefit of the time so spent within the meaning of sec. 5 of the Limitation Act. We have given our careful and anxious consideration to this contention and have come to the conclusion that it has force. We would now refer to a few cases which support us in the view we have felt persuaded to accept. In Ardha Chandra Rai Chowdhry Vs. Matangini Dassi (1) the plaintiffs suit was decreed on the 13th of April, 1893. On the 10th May one of the defendants who was not represented at the proceeding of the suit made an application to have the decree set aside. On the 30th November; 1893, the Subordinate Judge rejected the application. On the 24th February, 1894 the defendant filed an appeal to the High Court against the order of the subordinate court rejecting his application, and that appeal was dismissed on the 18th January 1895. Thereafter, on the 30th March 1895 appeal was filed against the original decree to the High Court, and the question of limitation arose. It was contended that the time during which the defendant was prosecuting his application for setting aside the exparte decree should be excluded in computing the period of limitation in filing the appeal, under sec. 14 of the Limitation Act. It was held, that the Limitation Act did not apply to appeals, and further, that it was not a case in which an application could properly be made for setting

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