The main legal point established in the judgment is the interpretation and application of Article 182(2) of the Limitation Act to determine the limitation for execution of the final decree on a mortgage.

Venkataramana Rao, J.

1. The main question argued in this appeal is whether an application to execute the final decree in a suit on a mortgage is barred by limitation. The relevant dates necessary for its disposal are as follows:

Preliminary decree .. 21st July, 1925. Final decree. .. 9th November, 1925. Decree of the appellate Court confirming the preliminary decree .. 16th March, 1927. Application for execution .. 15th March, 1930.

2. The learned District Munsif held following the decision in Somar Singh v. Deonandan Prasad Singh I.L.R.(1927) 6 Pat. 780 that the application was not barred by limitation. But the learned Subordinate Judge following the decision of Madhavan Nair, J., in Ahammad Kutty v. Kottekkat Kuttu (1932) 64 M.L.J. 251 : I.L.R. 56 Mad. 458 held that it was barred. The Article of the Limitation Act applicable to the case is Article 182(2):

For the execution of the Three years. (where there has been an decree of a Civil Court appeal) the date of the final decree or order of the appellate Court.

3. The view of Madhavan Nair, J., is that the appeal in column 3 must be from the decree or order sought to be executed, that the appeal from the preliminary decree could not be held to be an appeal from the final decree sought to be executed and when there is no appeal against the final decree, limitation would run from the date of the said decree. The view of the learned Judges of the Patna High Court in Somar Singh v. Deonandan Prasad Singh I.L.R. (1927) 6 Pat. 780 which was dissented from by Madhavan Nair, J., is thus expressed by Kulwant Sahay, J., at p. 785:

There is nothing here to show that the appeal must be against the decree sought to be executed. In my opinion the intention of the Legislature in making the provision was that if an appeal in any way imperils the decree sought to be executed then the date of the final disposal of the appeal should be the date from which the period of limitation ought to be computed.

4. This view was taken in two early cases decided with reference to Article 179(2) of Act XV of 1877 which corresponds to Article 182(2) of the present Limitation Act and the language of both the articles is word for word the same. In Narsingh Sewak Singh v. Madho Das I.L.R. (1882) 4 All. 274, Oldfield and Brodhurst, JJ., observed:

The article makes limitation run, where there has been an appeal from the date of the final decree or order of the appellate Court, and we think the appeal contemplated is an appeal in the suit, not necessarily an appeal from the original decree in the suit.

5. In that case...decree was passed on the 23rd August, 1873, but a review of the judgment was admitted and a decree passed on 29th November, 1876, by which the original decree was altered. Then an appeal was preferred by the plaintiff from the decree passed on review, and on a cross-objection taken by the defendant, the decree made on review was set aside by the High Court on the 28th March, 1879. It was held that the time for execution of the original decree ran from the 28th March, 1879, though an appeal therefrom was preferred. So far as I know this decision has never been doubted or dissented from but has since been followed.

6. In Lutful Huq v. Sumbhudin Pattuck I.L.R.(1881) 8 Cal. 248 the facts were as follows: An ex parte decree was passed on 7th February, 1876.On the 15th November, 1876, the defendant made an application to revive the suit. The application was rejected on the 15th November, 1876, and an appeal therefrom was dismissed on the 19th November, 1877. It was held that the limitation for the execution of the decree ran from 19th November, 1877, the date of the final order of the High Court. Morris, J., says:

The application to revive the suit really kept the decree open, and that decree did not become final until the order of the Appellate Court was passed on the 19th December, 1877.

7. I am aware that the above decision was dissented from in Fakir Chand Mandal v. Daiba Charan Parni I.L.R. (1927) 54 Ca