The word 'appeal' in Clause (2) of Article 182 of the Limitation Act does not include appeals in collateral proceedings such as the one under Order 9, Rule 13, C. P. C. and the restoration proceedings are not in the nature of a review proceeding.

R. K. DAS, J.

( 1 ) THIS is a decree-holders' appeal against the appellate decision of the Dist. Judge of Cutback, Dhenkanal confirming the order of the Munsif rejecting their application for execution as time-barred.

( 2 ) THE appellants obtained on 13-5-57 an ex parte money-decree for a sum of Rs. 2000/- against the respondent. The respondent, however, filed an application (Misc. Case No. 130/57) under Order 9, Rule 13 of the Civil Procedure Code for setting aside the ex parte decree, but the same was dismissed on 3-5-58 for default. It was however subsequently restored and again dismissed on 4-7-53. Against the said order of dismissal, the respondent carried an appeal (Misc. Appeal no. 75/59 ). The appellate Court on 22-3-60 directed the restoration of the aforesaid (Misc. case No. 130/57) to its file. After hearing, the Misc. case, was dismissed on 29-10-60. On 4-2-61 the present execution case was filed clearly beyond three years of the passing of the ex parte decree. The respondents resisted the execution on the ground that it is time barred. The appellant, however, contended that by virtue of the provisions of Clauses (2) and (3) of article 182, the period of limitation was to run from 29-10-601 the date of the final disposal of the Misc. case No. 130/57 and not from the date of the ex parte decree.

( 3 ) THE learned Munsif dismissed the execution petition as time-barred and rejected the contention of the appellants. In appeal, the learned Dist. Judge confirmed the decision of the lower Court. It is against the aforesaid decision, the present appeal has been preferred.

( 4 ) THE result of the appeal depends upon the construction of Clauses (2) and (3)of Article 182 of the Limitation Act. The said article runs as follows :

"182. For the 3 (1) From the date execution of a years of the decree or decree or order, or order of any civil Court. (2) Where there has been an appeal the date of the final decree or order of the appellate Court, or the withdrawal of the appeal, or (3) Where there has been review of judg-ment the date of the decision passed on the review. "

It is clear that the execution petition would be beyond time, if the period of limitation is held to have started from 13-7-1957, i. e. , the date of the Ex parte decree, now sought to be executed, unless of course the case comes under clauses (2) and (3 ). It is equally manifest that it is within rime if the period is deemed to have commenced from 29-10-60, the date of the dismissal of the restoration application.

( 5 ) MR. Mohanty, learned counsel for the appellant, contended that when the decree now under execution was itself in peril by reason of an application having been made under Order 9, Rule 13, C. P. C. by the respondents for setting it aside, the decree-holder cannot be compelled to pursue the so-often a thorny path of an execution when there is risk of the restoration application being allowed and the original ex parte decree itself being set aside. He contended that the decree-holder is entitled to exclude the period occupied under the aforesaid restoration proceedings. His argument in this respect was two-fold (i) That the word 'appeal' as appearing in Clause (2) of Article 182 is not one confined only to such appeals as are directly taken against a decree, but it also 'includes all appeals from orders passed in collateral proceedings such as the one under Order 9, Rule 13, C. P. C. and (ii) The restoration proceedings being in the nature of a review proceeding the decree-holder was also entitled to take the benefit under Clause (3) of the said article; and thus, in any case, he is entitled to compute the period of limitation from 29-10-60, that is, the date of the final order in the Restoration Proceeding.

( 6 ) LEARNED Counsel for the appellant in support of his first contention, that the word 'appeal' should be so liberally construed as to include appeals in collateral proceedings, relied upon a decision of the Privy Council reported in AIR 1