JUDGMENT
Mukerji, J.
1. One Radha Madhab Saha instituted a title suit No. 754 of 1920, against Gohur Ali Bepari and others. The suit was dismissed by the Munsif on the 30th August 1920. There was an appeal to the District Judge who allowed it on the 29fch March 1922. Some of the defendants preferred a second appeal to this Court making the plaintiff and the other defendants respondents therein. During the pendency of the appeal Radha Madhab Saha, the plaintiff, died. The appellants in this appeal obtained a rule to show cause why the abatement of this appeal in consequence of the death of the said Radha Madhah Saha should not be set aside and his heirs substituted in his place. The rule was discharged on the 3rd April 1925. The appeal was thereafter put up for hearing and on the 21st May 1925 the following order was passed:
The sole respondent having died and no substitution having bean made in his place, the appeal abates and is dismissed without costs as the respondent has not appeared.
2. A decree in similar terms was then drawn up and by it the appeal was disposed of.
3. The question that arises in the appeal now before us is whether the period of limitation under Article 182 Schedule 1 Limitation Act runs from the 21st May 1925 or from the 29th March 1922. The Courts below have held that it would run from the former date. The judgment-debtor Gohur Ali Bapari has preferred this appeal and his contention is that it would run from the latter date. The main argument advanced on behalf of the appellant is to the effect that an order declaring that the appeal has abated is not a decree or order as contemplated by Clause 2, Article 182, Schedule 1, Limitation Act, and reliance has been placed in support of this argument upon a number of decisions which will be presently noticed and chief amongst which are the decisions of the Judicial Committee in the cases of Batuk Nath v. Munni Dei A.I.R. 1914 P.C. 65 and Abdul Majid v. Jawahir Lal A.I.R. 1914 P.C. 66.
4. Batuk Nath v. Munni Dei A.I.R. 1914 P.C. 65 was a case in which the question arose with regard to an appeal before the Judicial Committee which was dismissed for non-prosecution as the steps necessary to be taken under Rule 5 of the order in Council of 15th June 1853 had not been taken by the appellant. That rule provides that
in default of the appellant or his agent taking effectual steps for the prosecution of the appeal within such time or times respectively the appeal shall stand dismissed without further order.
5. Their lordships pointed out that there was no order of His Majesty in Council dismissing the appeal and that no such order was necessary to be made, and under the rule aforesaid the appeal stood dismissed without further order. It was said in that case that a dismissal for want of prosecution is Dot the final decree of an appellate Court within the meaning of Article 179. In Clause 2, Schedule 2 of the Act of 1877, which for our present purposes may be taken as being the same as Article 182, Clause 2, Schedule 1 of the Act of 1908, no question of withdrawal arises in the case. The basis of the decision in Batuk Nath v. Munni Dei A.I.R. 1914 P.C. 65 has been put by Mookerjee and N.R. Chatterjea, JJ., in Lokenath Singh v. Gaju Singh [1915] 22 C.L.J. 333, in these words:
In that case there was no decree of the Court of appeal because the appeal preferred to the Judicial Committee never Came up for disposal by their lordships. The appeal was dismissed by the registrar for non-prosecution, and it was ruled that the order of the registrar was not a decree of the Court of appeal.
6. In Abdul Majid v. Jawahir Lal A.I.R. 1914 P.C. 66 an appeal before the Judicial Committee was dismissed for non-prosecution under similar circumstances. Their lordships pointed out that there was no decree of His Majesty in Council in which the decree of the High Court had become merged. It was observed:
The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognized authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and that, therefore, he was in the same position as if he had not appealed at all.
7. These observations were quoted with approval by the Judicial Committee in a later case in which also the question of limitation arose in connexion with an appeal before that Board which had been dismissed for non-prosecution : Sachindra Nath Roy v. Maharaj Bahadur Singh A.I.R. 1922 P.C. 187. These two decisions of the Judicial Committee have also been elaborately explained in Raghu Prosad Singh v. Jadunandan Prosad Singh A.I.R. 1921 Patna 6 which was the case of dismissal of an appeal for non-payment of printing costs. In that case it has been held that where an appeal is presented within time any order putting an end to the appeal in any way is either a decree or order within the meaning of Article 182 Clause (2).
8. In Fazal Husen v. Raj Bahadur [1897] 20 All. 124 there was an appeal by one Hardyal and an appeal against him, and Hardyal having die during the pendency of the appeals and on the failure to put Hardyal’s representatives on the record, the appeals abated. It was held that the order by which the appeals were declared as having abated did not give a fresh starting point for limitation under Clause 2, Article 179, Schedule I of the Act of 1877. In the case of Fazl-ur-Rahman v. Shah Muhammad Khan [1908] 30 All. 385 two appeals were dismissed as the counsel for the appellants informed the Court that he was unable to support them. Fazal Husen v. Raj Bahadur [1897] 20 All. 124 was cited in that case. The learned Judges held that notwithstanding that the appeals had been dismissed under such circumstances limitation did none the less run from the decree of the appellate Court. They went on to observe as follows:
If a judgment-debtor’s appeal, as sometimes happens, is pending for upwards of three years, and if it were held that the appellant judgment-debtor, by withdrawing or declining to support the appeal, or by omitting to bring on the record the representatives of a deceased respondent, could, notwithstanding the fact that an appeal had been filed, cause time to run from the date of the original decree, it would in our opinion be going directly against the language of the Limitation Act and open a door to fraud.
9. The authority of Fazal Husen v. Raj Bahadur [1897] 20 All. 124 was doubted in other decisions of the same Court, e.g. Kewal v. Tirkha [1906] 3 A.L.J. 8 and Muhammad Razi v. Karbalai Bibi [1909] 32 All. 136. In the last mentioned case it was held that an order declaring an appeal to have abated is in effect an affirmation of the decree of the Court below, and limitation only begins to run against the decree-holder from the date of such order and not from the date of the decree under appeal. In Tikait Krishna Prosad Singh v. Wazir Narain Singh [1920] 5 Pat.L.J. 731, Fazal Husen v. Raj Bahadur [1897] 20 All. 124 was followed in preference to Muhammad Razi v. Karbalai Bibi [1909] 32 All. 136, it being pointed out that the latter case was not one under Article 179, Limitation Act, and also that it proceeded upon an erroneous view of the authority in the case of Mahomed Mehdi Bella v. Mohini Kanta Saha Chowdhry [1907] 34 Cal. 874. In Tikait Krishna Prosad Singh’s case (1907) 34 Cal. 874 the facts were that during the pendency of an appeal in the High Court one N who was not a party to the suit or the decree of the trial Court was added respondent in the appeal, he having in the meantime obtained a decree that he was entitled to succeed to the estate of the mortgagor judgment-debtor who had died. The widow of the mortgagor judgment-debtor who was substituted in the place of her husband was the respondent against whom the appeal was originally filed. N died during the pendency of the appeal and an application was made for substituting his heirs but was eventually dropped, The appeal was then disposed of on a compromise between the appellant and the original respondent. W, an heir of N, then applied to execute the decree of the original Court and the question arose whether limitation ran from the decree of the trial Court or from the compromise decree passed by the appellate Court. It appears from the judgment of Coutts, J., that there was no order of the appellate Court declaring that the appeal had abated. In that way, as well as upon the other facts, the case was clearly distinguishable from a normal case of abatement of an appeal. It was held that W could not rely upon the decree of the appellate Court as giving him the starting point for limitation. It will be observed that in this case the learned Judges relied upon the two decisions of the Judicial Committee as supporting their view. In Hira Lal Kumar v. Ganu Mahto A.I.R. 1925 Patna 585 it was held that the fact that the appellants allowed their appeal to abate against the deceased respondent could not prevent the latter’s legal representatives from taking the benefit of the appellate Court’s decree, and limitation ran under Article 182, Clause (2) from the date of the decree of the Court of appeal. The learned Judges in that case, applying the principle of the decision in Raghu Prosad Singh v. Jadu Nandan Prosad Singh A.I.R. 1921 Patna 6, held that there is no distinction in principle and there ought to be no difference in the result for the purpose of Article 182, Clause 2 when the appellant instead of withdrawing from the appeal allows it to abate. In the case of Kalimuddin v. Esabakuddin it has been pointed out that where one of several respondents died during the pendency of the appeal, and his heirs being brought on the record were not properly represented, the appellants not having put in the deputy registrar’s costs and the usual indemnity bond, and the appeal was first of all dismissed as against those heirs by one order and afterwards by another order, dismissed as against the other respondents on the ground that it could not proceed against them alone, the former order did not, while the latter did, amount to a “decree” within the meaning of the Code of Civil Procedure. It has been held by this Court in Ramgati Dhar v. Nagendra Lal Chowdhury Misc. Appeal No. 373 of 1903, a short note of which is to be found in 1 C.L.J. 17n, that an order of the High Court declaring that an appeal has abated is, if not a decree, certainly an order which has finally disposed of the suit and that therefore an application for execution presented within three years from the date of such order is not barred. That final orders of disposal of similar character are to be regarded as being within Clause (2), Article 182 has been held in cases where the appeal has been dismissed on the ground of being barred by limitation Akshoy Kumar Nundi v. Chunder Mohun Chathati [1888] 16 Cal. 250 or on the failure on the part of the appellant to put in deficit Court-fees Rup Singh v. Mukhraj Singh [1885] 7 All. 887 though there is some conflict of opinion as regards the latter class of cases.
10. The inequities of the view propounded by the appellant have been, as already stated, clearly pointed out in Fazl-ur-Rahman v. Shah Muhaamad Khan [1909] 32 All. 136. In my opinion the view taken by the Full Bench in the case of Jeeyangar v. Lakshmi Doss [1906] 30 Mad. 1, that when an appeal is entertained and an order made by the Court to which the appeal is preferred which has the effect of finally disposing of the appeal, execution runs from the date of the appellate Court, does not go beyond the range of the limits of the applicability of Clause 2, Article 182, Schedule I Limitation Act, of 1908.
11. The Courts below appear to have taken a correct view of the matter and the appeal accordingly is dismissed with costs : hearing fee-being assessed at two gold mohurs.
Roy, J.
12. I agree.
