The main legal point established in the judgment is that even an incompetent appeal can furnish a fresh starting point of limitation under Article 182(2) of the Limitation Act.

Kuppuswami Ayyar, J.

1. The only point for consideration in this appeal is whether E.A. No. 1102 of 1942 on the file of the Chingleput Subordinate Judges Court out of which this appeal arises was barred by limitation or not. Both the lower Courts have found that it was not barred by limitation. The decree was passed on 11th November, 1938. The defendant was ex parte. This petition was filed on 25th July, 1942. The final order on the previous E.P. No. 287 of 1939 was passed on 5th July, 1939. But it was alleged for the decree-holder that the defendant made an application, I.A. No. 384 of 1939, to set aside the ex parte decree in the suit, and that an appeal was preferred against the order dismissing that application and that appeal was dismissed as incompetent and therefore the period of limitation commenced on 5th August, 1940, the date on which the appeal against the petition to set aside the ex parte decree was disposed of. It is contended for the appellant that there was no final order by an appellate Court as the appeal itself was not maintainable and consequently the date of the dismissal of the appeal cannot furnish a starting point of limitation. That an appeal was filed is a fact and that it was filed in the Court to which appeals from the Court which passed the original decree would lie ordinarily under the Civil Courts, Act is not disputed. But what is stated is that against the order in such proceedings of a small cause nature no appeal is provided and consequently the order in the appeal would not furnish a starting point of limitation. It is not disputed that if an appeal lay and the order had been passed that it would furnish a starting point of limitation in this case, but since it is stated that the appeal was incompetent any order passed thereon cannot be said to be an order as contemplated in Article 182(2) of the Limitation Act which runs thus:

For the execution of a decree or order of any Civil Court not provided for by Article 183 or by Section 48 of the Code of Civil Procedure, 1908, Three years; from (where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal.

Therefore, the only essentials are that there must have been an appeal and an order of the appellate Court. In this cas6 an appeal was filed and that was filed in the Court to which appeals from the Court which passed the decree ordinarily lay and that appeal was dismissed.

2. The interpretation of this Article had to be considered by the Privy Council in Nagendranath Dey v. Sureshchandra Dey (1932) 63 M.L.J. 329 : L.R. 59 IndAp 283 : I.L.R. 60 Cal 1 and this is what was observed by their Lordships:

There is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less-an appeal because it is irregular or incompetent.

In this case, there was an appeal though it was incompetent not in the sense that it was filed in a wrong forum but on the ground that no appeal lay. But even if it was an incompetent appeal, an order in that appeal would give a starting point of limitation under Article 182(2). The decision in Abdul Kadir v. Samipandia Thevar (1920)39MLJ431 cited for the appellant has no application. There the appeal was not presented to the proper Court, and it was returned for presentation to the proper Court It was said that such an order was not the final order of an appellate Court. The decision in Byyareddi v. Gopal Rao (1933) 66 M.L.J. 486 : I.L.R. 57 Mad. 741 also has no application to the facts of this case There an appeal was filed out of time and a petition to excuse the delay under Section 5 of the Limitation Act had been filed. But that petition was dismissed The appeal could have been considered only if that petition was allowed Hence it was he