The rejected appeal memorandum does not constitute an appeal for the purpose of computing the period of limitation for execution of a decree under Article 182, Clause (2) of the Limitation Act.

Madhavan, J.

1. This Civil Miscellaneous Second Appeal arises out of an application for execution made by the appellant. He obtained a decree in O.S. No. 533 of 1921 on the file of the Court of the District Munsif of Krishnagiri on 5th September, 1922. This decree was confirmed on appeal by the District Judge of Salem in A. S. No. 275 of 1922 on the 20th April, 1925. The judgment-debtor preferred an appeal against the appellate decree to the High Court. This appeal was filed four days out of time. The High Court in C. M. P. No. 3943 of 1925 refused to excuse the delay in presenting the second appeal. In consequence, the C.M.P. and S.R. (the second appeal sought to be preferred to the High Court) were dismissed on the 5th March, 1926. The decree now sought to be executed is the decree passed on first appeal on 20th April, 1925. The present application to execute that decree was filed on 6th September, 1928, that is after the lapse of more than three years. The respondent, the judgment-debtor, contended that the application is barred by limitation. The decree-holder contended that the application is not barred inasmuch as it was filed within three years from 5th March, 1926, the date when the High Court rejected the second appeal. The question in this Civil Miscellaneous Second Appeal is which view is right. Both the Lower Courts held that the execution application is barred by limitation.

2. The appellant-decree-holder relies on Article 182, Clause (2) of the Limitation Act which says that the period of limitation for the execution of a decree is three years to be computed where there has been an appeal from the date of the final decree or order of the appellate Court, or the withdrawal of the appeal. It is argued on behalf of the appellant that inasmuch as there has been an appeal to the High Court, the date of the final order of the High Court, that is 5th March, 1926, should be taken to be the starting point for computing the period of limitation and that it should therefore be held that his application is not barred by limitation. The respondent, on the other hand, contends that as the appeal to the High Court was not admitted as having been filed out of time, it should not be held that there has been an appeal against the decree of the appellate Court as contemplated by Clause (2) of Article 182 of the Limitation Act.

3. The appellants contention is supported by the decision in Akshoy Kumar Nundi v. Chunder Mohun Chathati I.L.R. (1888) Cal. 250 where the precise point we are now considering arose for decision. In that case it was held that in the execution of a decree against which an appeal has been presented but rejected on the ground that it was after time, limitation begins to run from the date of the final decree or order of the appellate Court. The learned Judges pointed out that the words where there has been an appeal in Article 179, Clause (2) of Sch. II of Limitation Act of 1877, corresponding to the present Article 182, Clause (2), mean where a memorandum of appeal has been presented in Court. They rejected the contention that the words where there has been an appeal mean where there has been an appeal presented and admitted. This decision no doubt supports the appellant very strongly. The appellant also relies on the decision of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey which contains observations which are prima facie in his favour. I shall refer to these observations presently.

4. It seems to me that the decision in Akshoy Kumar Nundi v. Chunder Mohun Chathati I.L.R. 16 Cal. 250 should not be applied in deciding the present case having regard to the new Sub-section (3) added in this Presidency to Rule 1 of Order 41 of the Code of Civil Procedure. According to the procedure which prevailed in Madras prior to the decision of the Privy Council in Krishnasami Panikondar v. Ramasami Chettiar the question whether the delay in filing the appeal should be excused or not was decided only after a