The main legal point established in the judgment is the entitlement of mortgagors to execute a decree for redemption and the applicability of the Limitation Act in relation to the timing of the application for execution and the order of the Appellate Court.

Oldfield, J.

1. The first question raised in this appeal is whether the plaintiffs, mortgagors, are entitled to execute their decree, one for redemption, by asking the Court to sell the mortgaged property. It is prima facie concluded in their favour by Govinda Taragan v. Veeran 12 Ind. Cas. 432 : 36 M. 82 : 21 M.L.J. 941 : 10 M.L.T. 322 : (1911) 2 M.W.N. 823, since we have been shown no case in which that decision has been doubted, and one Civil Miscellaneous Appeal No, 99 of 1915, in which it has been followed, and since Mr. Anantha Krishna Iyer for defendants 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 of Schedule I of the Limitation Act.

3. This Courts order in no degree degree 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 starling point was in trod used into the Article by its amendment in 1908. But this argument is unsustainable, if, as in Peria Kovil Ramanuja Peria Jeeyangar v. Lakshmi Doss M. 1 : 16 M.L.J. 393 : 1 M.L.T. 233, and Fuzl-ur-Rahman v. Shah Muhammad Khan 30 A. 335 : 5 A.L.J. 680 : A.W.N. (1903) 161, which were re produced in the amendment, there is, besides the withdrawal, an order dismissing the appeal as withdrawn.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 have 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 16 C. 250 : 8 Ind. Dec. (N.S.) 165 it was held that an appeal is presented, for the purpose of the Limitation Act, when it is 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 am unable to follow that distinction and it was supported by no authority. The remainder of the argument in inconsistent with reference to the not an Appellate Court in the Article and its best support was the reference to Krishnaswami v. Kanikasabai 14 M. 183 : 1 M.L.J. 231 : 5 Ind. Dec. (N.S.) 130 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. Hati Mohun Mullick 17 C. 165 : 8 Ind. Dec. (N.S.) 642 and Ni