Starting point of limitation is the date of declaration and not the date of disposal of appeal.

In our opinion this appeal has to be allowed and E.P. No.88 of 1947 remanded to the Subordinate Judge of Sivaganga for disposal on the merits. The learned Subordinate Judge has held that the execution is barred on the ground that more than twelve years have elapsed from 14th August, 1934, when this Court allowed A.S.No.406 of 1930, and such being the case E.P.No.88 of 1947 is barred under section 48 of the Civil Procedure Code.

What happened was that for the restitution of costs realised by a decree-holder in O.S.No.114 of 1925 on the file of the Sub-Court, Madura, one Sathayappa Chettiar executed a security bond in favour of the Court. In that security bond Sathayappa Chettiar stated that himself personally and the joint family properties belonging to him and his two sons would be made liable in case the decision in A.S.No.406 of 1930 went against the persons on whose behalf the security bond was executed. On 14th August, 1934, this Court in A.S.No.406 of 1930 allowed the appeal and thereby made the security bond enforceable. Thereafter by E.A. No.750 of 1934 the plaintiff-decree-holder who is the appellant in this appeal tried to enforce that security bond. To that application he impleaded as 1st respondent, one minor Shanmugham Chettiar through guardian Shanmugham Chettiar, and the 2nd, 3rd and 4th respondents respectively, Sathayappa Chettiar, the executant of this security bond and his two sons, Arumugham Chettiar and minor Sokkanarayanan. Arumugham Chettiar was a major and Sokkanarayanan was admittedly a minor at that time. On the 24th October, 1938, the Subordinate Judge of Madura found that the security bond can be enforced in execution, and decreed that the respondents 1 to 4 in that application of whom respondents 2 to 4 are the persons with whom we are now concerned should pay the principal amount of Rs.2,253-3-1 to the plaintiff-petitioner with interest that is provided in the security bond. That is by means of this order the agreement of the undertaking given in the security bond was made enforceable as if a decree had been passed thereupon. Against that order Arumugham Chettiar, filed an appeal to this Court, C.M.A.No.364 of 1939, in which the only respondent was the plaintiff-petitioner Rayalu Iyer Nagaswami Iyer and Company. The father Sathayappa Chettiar and the minor Sokkanarayanan Chettiar were not made parties to that appeal. On the 2nd April, 1941, this Court consisting of Wadsworth and Patanjali Sastri, JJ., allowed the appeal of Arumugham Chettiar and set aside the order of the lower Court directing that the joint family properties of Sathayappa Chettiar and his two sons can be proceeded against, and held that such an order would not be binding on the share of Arumugham Chettiar or on him personally. But in their order the learned Judges have held as follows:

“In this view it is unnecessary to go into the other questions that have been argued before us. We wish only to add that this decision will govern only the parties now before us and is not intended to affect the rights of the respondent as against the other parties to the proceeding in the Court below.”

Though Sathayappa Chettiar and Sokkanarayanan were not made parties to that appeal, still the decision arrived at by the Subordinate Judge in E.A.No.750 of 1934 as against Sathayappa Chettiar and minor Sokkanarayanan was confirmed.

Now the question is what is the period of limitation for the execution of the undertaking given in the security bond. The learned Subordinate Judge in the Court below is of opinion that since the decree of this Court in A.S.No.406 of 1930 was passed on 14th August, 1934, that date should be considered as the starting point of limitation from which the period will run for the enforceability of the security bond. But the learned Subordinate Judge forgets the fact that it is not any right obtained by the decree in O.S.No.114 of 1925 or its appeal A.S.No.406 of 1930 that is now sought for by the plaintiff. What t