This appeal arises out of an execution petition filed on November 21, 1941, in a mortgage suit, O.S. No 26 of 1927, on the file of the Subordinate Judge’s Court of Cuddalore in which the final decree was passed on November 25,1929. This is the judgment-debtor’s appeal against the learned Subordinate Judge’s order directing execution to issue.

The sole question arising is whether the execution petition is barred by the provisions of Article 182(5) of the Limitation Act. It was filed a few days before the expiration of twelve years following the passing of the decree and the only point for consideration is whether the filing took place within three years of the final order in an earlier execution petition.

The execution petition, out of which this appeal arises, is the fifth of such petitions filed since the final decree in the suit was passed. The first four petitions were filed on (1) November 21, 1932, (2) November 19, 1935, (3) November 21, 1935, and (4) November 22, 1938. Petitions Nos. 1, 2 and 4 were purported to be dismissed and No. 3 was “rejected.” It is conceded that, if there was a final order within the contemplation of Article 182(5) in each of those petitions, then the present petition is not barred by limitation.

Mr. Panchapakesa Sastri for the judgment-debtors (Appellants) contended that the order, purporting to be of dismissal of petition No. 1 was not a final order and consequently petitions Nos. 2 and 3 were barred by limitation at the dates when respectively they were filed and, similarly, regarding petition No 4, so that the present petition falls within the statutory bar found in Article 182(5). It is conceded that the orders passed in respect of petitions Nos. 2 and 3 were final orders and there is no question relating to those two petitions,, save that which arises with respect to petition No. 1 as previously mentioned. It was particularly argued that no final order was passed in petition No. 4 and, consequently, the execution petition out of which this appeal arises was not filed within three years of a final order passed in an earlier petition and is therefore barred by limitation.

With respect to Execution Petition No. I, on 14th February 1932, a direction was given to re-present the petition in two weeks after complying with some requirements; after some other directions had been given, on 16th December, 1932, time to re-present was extended until 11th January, 1933; on 18th January, 1933 (that is seven days after the time for re-presentation had expired on nth January), the decree-holders informed the Court that the petition was not pressed and it was prayed that it be dismissed; on 23rd January, 1933, the Court made an order in these terms: “This is not pressed and hence dismissed.”

In respect of Execution Petition No. 4, after several extensions of time to represent it had been ordered, on 3rd January, 1939, time was further extended by three days (i.e., to 6th January); on 11th January 1939, (i.e., five days after the expiration of the extended period) the the petition was re-presented with a prayer that it was not pressed for the present and it might be dismissed; on 18th January 1939, the Court ordered the dismissal of the petition.

Mr. Panchapakesa Sastri argued that in respect of those two execution petitions when time had expired for re-presentation and in the absence of an application to excuse the delay and an order of Court granting such application, each petition had no legal existence and the position was the same as if it had not been re-presented, it had never emerged into legal existence and the Court was incapable of directing its dismissal; consequently, there was not a final order which had any force or effect, when the Court purported to direct its dismissal. Syed Gulam Khadir Sahib v. Viswanatha Aiyar,1 was cited in support of that contention.

In the case just now cited an execution petition was filed in 1933; it was returned for compliance with a requirement to file