The main legal point established in the judgment is the determination of the starting point of limitation for appealing and the impact of the restoration of a decree by a higher tribunal on the appeal time limit.

Krishnan Pandalai, J.

1. The question is whether this appeal was presented in time. The material dates are as follows:

The appeal is from a preliminary decree on a mortgage passed ex parte by the Subordinate Judge of Madura in O.S. No. 128 of 1926 first on 8th August, 1928. The appellants, (defendants 1 and 4) applied under Order 9, Rule 13 on 9th August, 1928, to set aside the ex parte decree and the Court set it aside on 12th October, 1928. Meanwhile, the appellants had also on 9th August, 1928, applied for copies of the judgment and decree and they were ready for delivery on 27th September, 1928, so that, had the appellants wanted to appeal, they had out of the 90 days available about 1 1/2 months more after 12th October, 1928. As the decree was set aside by the Sub-Judge himself, no appeal was preferred. But the plaintiff (respondent) applied in C.R.P. No. 116 of 1929 to this Court to revise the order of the Sub-Judge setting aside the ex parte decree and this Court on 22nd November, 1929, set aside that order thus restoring the preliminary decree to effect. This appeal was presented on 6th January, 1930.

2. The provision of the Limitation Act applicable is Article 156 which prescribes a period of 90 days from the date of the decree or order appealed from. The appellants contend that the date of this decree for the purpose of appeal must be taken as 22nd November, 1929, when this Court by its order in C.R.P. No, 116 of 1929 restored force and effect, including appealability, to the original decree which it had lost by its being set aside. The respondent contends that the date of the decree is 8th August, 1928, the date when it was originally passed, and that its subsequent vicissitudes have no effect on the period of appealability and that the only course open to the appellants is to induce this Court to excuse the delay under Section 5 of the Limitation Act. No application under Section 5 being now before us, we have to decide between the two above contentions as to the starting point of limitation.

3. No decision exactly in point has been brought to our notice. But we entertain little doubt that the appellants contention must be accepted. It is not only in consonance with the principle underlying the law of limitation that suits, appeals and other legal proceedings are possible only when there is some cause of action, or ground of appeal or other grievance on which the plaintiff, appellant or applicant has a right to come to Court and ask for relief, but the opposite view would lead to the absurd result that an appellants right to appeal and the decree-holders right to execute the decree are both barred before the decree to be appealed from or to be executed came into legal being.

4. In Muthu Korakkai Chetty v. Modar Ammal (1919) I.L.R. 43 M. 185 : 38 M.L.J. 1 (F.B.), a Bench of live Judges dealt with the question whether for an application for delivery of properties sold in Court auction, limitation ran from the date of an ex parte confirmation of the sale (26th April, 1913) or from the termination of proceedings taken by the opposite party to set aside that confirmation (25th June, 1915). It was held by four of the learned Judges that the latter date was the terminus a quo although the result of the proceedings in respect of the properties subsequently sought to be recovered was that the order of 26th April, 1913, was confirmed by that of 25th June, 1915. The other learned Judge contented himself with answering the question put in the negative as it was put in the form whether the cause of action for application was suspended during the pendency of the proceedings. The decisions of the Judicial Committee bearing on this question, an apparent conflict between which was the cause of the reference, to a Full Bench, were so fully gone into in that case, that it is needless to refer at length to them again. To. understand the ground of decision of the Court it is sufficient to refer to the citations from the Privy Council d