The main legal point established in the judgment is that the High Court's order returning the appeal for presentation to the District Court was not a final order of the Appellate Court, and the application for execution was out of time.

Oldfield, J.

1. The first question raised in this appeal is whether the plaintiffs, mortgagors, are entitled to execute their decree for redemption, by asking the Court to sell the mortgaged property. It is prima facie concluded in their favour by Govinda Targan v. Veeran (1913) I.L.R., 36 Mad., 32, since we have been shown no case in which that decision has been doubted and in Venkatachalam Pattar v. Ramayyar C.M.A., 99 of 1915 (unreported.) it has been followed, and since Mr. Ananthakrishna Ayyar for defendants has declined to argue against its correctness. He has relied only on the fact that the decree provides for a sale at the instance only of the mortgagee. But that appears to have been the case also in the decision referred to. This objection to the order under appeal must therefore be disallowed.

2. The more important contention before us is, however that the plaintiffs application for execution was made too late; and certainly it was so unless time ran, as they contend, from the date 10th February 1915 on which an order was passed by this Court returning their memorandum of appeal against the decree for presentation to the District Court, as the proper Court to entertain it. Was the High Court in these circumstances the Appellate Court and was this its final order within the meaning of Article 182, Schedule I, Limitation Act?

3. This Courts order in no degree decided the appeal; and its final character has been supported mainly by comparison of its effect with that of the withdrawal of the appeal, reference to which as a starting point was introduced into the article by its amendment; in 1908. But this argument is unsustainable, if, as in Peria Kovil Ramanuja Peria Jeeyangar v. Lakshmi Doss (1907) I.L.R., 30 Mad., 1 (F.B.) and Fazl-ur-Rahman v. Shah Muhamad Khan (1908) I.L.R., 30 All., 385, which were reproduced in the amendment, there is besides the withdrawal an order dismissing the appeal as withdrawn. Further there is an order of the Appellate Court, such as the article contemplates directly. And it may be doubted whether there can be cases of withdrawal without such an order. For the procedure for withdrawal of a suit with leave to sue again under Order XXIII corresponds with nothing in the specification of the powers of the Appellate Court in Section 107, Civil Procedure Code. But, it is useless to consider further the applicability of the reference in the article to withdrawal or the analogy between it and the order in question at present, when in my opinion plaintiffs must fail, because this Court was not the Appellate Court, inasmuch as the proceedings before it were not within its jurisdiction.

4. In Akshoy Kumar Nundi v. Chunder Mohun Chathati (1889) I.L.R. 16 Calc., 250, it was held that the appeal was presented to the proper Court and in the present case, in which this Court returned the appeal memorandum for want of jurisdiction there was no legally constituted appeal and no final order by the Appellate Court. It is suggested that the order of return was final, so far as this Court was concerned, and that it was the order of the Appellate Court, because this Court has appellate powers, a distinction being attempted between failures of jurisdiction on territorial grounds and on the pecuniary grounds referred to in this Courts order. I was unable to follow that distinction and it was supported by no authority, The remainder of the argument is inconsistent with the reference to "the" not "an" Appellate Court in the article and its best support was the reference to Krishnasami v. Kanakasabai (1891) I.L.R., 14 Mad., 183 and the cases therein cited. But the principle for which plaintiffs contend, was referred to only obiter in this Courts decision and was applied in Matra Mondal v. Hari Mohun Mullick (1890) I.L.R., 17 Calc., 155 and Nidhi Lal v. Mazhar Husain (1885) I.L.R., 7 All., 436 to proceedings actually completed in the wrong Court, through mistake and without objection, and was authorized by the ref