Dharmadhikari, J. -- 1. The learned Single Judge (B.C. Varma, J. as he then was) in the course of deciding this appeal on 28.7.1983 noticed conflicting decisions of the two Division Benches of this Court on the question of the applicability of the provisions of Article 182 of the Limitation Act, 1908 and has, therefore, referred the following questions to the Full Bench for decision:

(1) Whether the word 'appeal' as used in Clause (2) of Article 182 of the Limitation Act, 1908 means an appeal from a decree which is sought to be executed or it will include even an appellate order made on refusing to set aside the ex-parte decree, and

(2) Whether contesting an application by judgment-debtor for setting aside an ex-parte decree under Order 9, Rule 13 of the Civil Procedure Code, constitutes a step-in-aid within the meaning of Art. 182 (5) of the Indian Limitation Act, 1988?

2. Before pointing out the conflict of decisions between the two Division Benches of this Court, the factual back-ground in which the two questions arise may be set out.

3. In Civil Suit No. 14-A of 1944, on 27.4.1946 the Court of Additional District Judge, Bilaspur passed the preliminary decree for foreclosure on the mortgage deed dated 11.7.1932. A period of six months was fixed in the decree for payment of the decretal amount, and on failure the plaintiff should obtain a final decree. The judgment-debtor failed to make the payment within time. On 17.2.1947, the decree holder made an application for passing a final decree. The judgment-debtor had preferred an appeal against the preliminary decree and the passing of final decree was stayed. The said first appeal against preliminary decree was, however, dismissed in 1957. On 28.10.1958, a final decree for foreclosure was passed ex-parte. On 30.10.1958, the judgment-debtor filed an application under Order 9 rule 13 CPC for setting aside the ex-parte final decree. The stay application was rejected on 8.5.1959 against which the judgment-debtor preferred Misc. (First) Appeal No. 98 of 1959. He also obtained stay of execution of the decree on 22.3.1960. The appeal against rejection of the application for setting aside ex-parte decree was, however, dismissed on 27.1.1961.

4. The decreeholder thereafter filed application for execution of final decree on 27.9.1965. According to the decreeholder, since the ex-parte final decree of foreclosure was subject matter of the miscellaneous appeal, the period of limitation for filing application for execution under Article 182 (2) of the Limitation Act of 1908 was to commence from 27.1.1961 when the appeal of the judgment-debtor against rejection of his application under Order 9 Rule 13 CPC for setting aside the decree was rejected.

5. On the other hand, the case of the judgment-debtor is that under Article 182 of the Limitation Act of 1908, the period 0fiimitation will be reckoned from the date of passing of the final decree on 28.10.1958 and the application for execution having been filed beyond the prescribed period of three years, the application is barred by time. It is contended on behalf of the judgment-debtor that the appeal of the judgment-debtor against rejection of his application under Order 9 Rule 13 CPC for setting aside ex-parte decree is not covered by Article 182 (2) of the Limitation Act because there the period of limitation is reckoned from the date of order passed in appeal only if the appeal is against an executable decree or order it is contended that the use of the expression' 'Where there has been an appeal" in Article 182 (2) of the Act of 1908 will not include an appeal in collateral proceedings.

6. Since the answers to the two questions referred require interpretation of the relevant entries of Article 182 of the Act of 1908, the said entries are reproduced hereunder:

Description of application Period of Limitation Time from which period begins to run

'182. For the execution of a Three years: or where a 1. The date of the decree or order or

decree