( 1 ) THE question raised by the appellants in this appeal is whether the application for execution of a decree passed against them was barred by time or not.

( 2 ) THE decree was for money and was passed against the appellants and in favour of the respondent on 15-4-1947, and was amended on 2-8-1947. The appellants applied On 21-7-1948 for leave to appeal from it as paupers but their application was dismissed! and they paid the court-fee on the memorandum of appeal on 3-11-1948, whereupon the appeal was admitted and a notice of it was given to the respondent. On 3-11-1952 it was dismissed for want of prosecution because translation and printing charges were not deposited by the appellants within the time allowed. On 17-10-1955 the respondent applied for execution of the decree and the appellants challenged its maintainability on the ground that it was barred by time. The appellants computed the period of three years limitation from 2-8-1947 while the respondent contended that it was to be computed from 3-11-1952. It cannot be disputed that if it was to be computed from 3-11-1952 the application was within time, The executing Court computed it from 3-11-1952 and held the application to be within time; that is the order impugned before us by the appellants.

( 3 ) ADMITTEDLY the question is governed by the provision of Article 182 of the Limitation Act, which provides that the period of three years limitation for the execution of a decree or order of a civil Court runs from; " (1) the date of the decree or order, or (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" etc. 3a. Two questions arise, (1) has there been an appeal?, and (2) if so what is the date of the final decree or order passed in it?

( 4 ) THE answer to the first question must clearly be in the affirmative. Not only did the appellants present an appeal from the decree but also it was admitted and the appellate Court gave notice of it to the respondent. That it was dismissed subsequently on the ground of non-prosecution does not mean that it had not been filed or never came into existence. The answer to the question whether there had been an appeal or not, does not depend upon what its result has been or how it has been disposed of. The argument that an appeal filed but dismissed for non-prosecution is a3 good as an appeal not filed is fallacious. An appeal dismissed on merits after severe contest is as good as an appeal not filed, if one judges the matter by the result; the appellant would be in the same position if he had not filed the appeal at all. Still nobody would dispute the fact that in the case there had been an appeal. If there had been an appeal, though it was dismissed on merits, there is no warrant for saying that there had not been an appeal when an appeal after being filed is dismissed not on merits but on the ground of want of prosecution. Referring to the words "where there has been an appeal" Sir Dinshaw mulla, speaking for the Judicial Committee of the Privy Council in Nagcndra Nath Dey v. Suresh Chandra Dey AIR 1932 PC 165, observed at p. 367:

"there is no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it, the words mean just what they say. The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words, is their Lordships think, the only safe guide. "

In that case an appeal was filed from the decree and though it was irregular in form and was insufficiently stamped, it was admitted, heard and dismissed not only upon the merits but also upon the ground of the irregularity and the Judicial Committee held that the period of limitation for an application for execution of the decree was to be computed from