M.M. Ismail, J. -
(1.) FROM the mother of the respondent herein, the appellant purchased certain property under Exhibit A -1 dated 5 -9 -1119 M.E. The very property purchased by the appellant was charged with certain debts in a partition arrangement entered into' between the respondent's mother and certain other persons. On the basis of that charge, O.S. No. 348 of 1121 M.E. was instituted on the file of the Court of the Principal District Munsif, Padmanabhapuram, and a decree was passed therein on 20th March, 1950. Since the appellant was vitally affected by this decree, in order to safeguard his interest and to save the property, he paid the amount due under the decree. Before making the payment, he preferred an appeal against the judgment and decree in O.S. No. 348 of 1121 M.E. itself, but he did not prosecute the appeal, and the same was dismissed for default on 5th August, 1955, and the order in the said appeal has been marked as Exhibit B -6. It is thereafter only that the appellant paid the amount due under the original decree on 2nd May, 1960, as evidenced by Exhibit A -10. Having made this payment, he instituted the present suit O.S. No. 139 of 1963 on the file of the Court of the Principal District Munsif, Padmanabhapuram, for recovery of a sum of Rs. 1,530 as damages sustained by him because of the property purchased by him being subjected to a prior charge. The suit was resisted by the respondent herein, and the principal ground of defence was that the payment made by the appellant was a voluntary payment, since on the date when he paid the amount, viz., 2nd May, 1960, the execution of the decree was barred by limitation, and in such circumstances, the payment made by the appellant could be treated only as a voluntary payment, for which the respondent cannot be held responsible. Both the Courts have accepted the plea of the respondent, and dismissed the suit of the plaintiff, and hence the present second appeal by the plaintiff.
(2.) THE only question that arises for consideration is whether the payment made by the appellant herein was a voluntary payment in the sense that at the time when he made the payment, the execution of the decree in respect of which the payment was made was barred by limitation. The conclusions of both the Courts are the result of some confusion between the effect of Exhibit A -8, the decree passed in O.S. No. 348 of 1121 M.E. and Exhibit B -6, the order passed in A.S. No. 118 of 1951, dismissing the appeal preferred by the appellant for default. The definition of the term "decree" as contained in Section (2) Sub -Section 2 of the Code of Civil Procedure, makes it clear that it does not include any order of dismissal for default. Consequently, Exhibit B -6 itself is not a decree. Therefore, there is no question of Exhibit B -6 being put into execution. The only executable decree in this case was Exhibit A -8 dated 20th March, 1950. The one admitted fact in this case is that Exhibit A -8 was registered. In these circumstances, the question for consideration is whether the execution of the decree can be said to have been barred on 2nd May, 1960, when the appellant made the payment. The legal position that the period of limitation for executing the registered decree, under the Limitation Act (IX of 1908), was six years is not disputed. But the controversy centres around the point of time from which the limitation can be calculated or the date from which the period of limitation is said to commence. It is in this context it is necessary to refer to Article 182 of the First Schedule to the Limitation Act, 1908, and in particular, item 2 in column 3. While column 2 of that Article provides that the period of limitation for the execution of a decree, which has been registered is six years, in column 3, the time from which the period begins to run is mentioned. Item 1 of column 3 states that the time from which the period begins to run is the date of the decree. Item 2 is as follows:
(Where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal.
(3.) AS far as the present case is concerned, I have already referred to the fact that the appeal preferred by the appellant was dismissed for default, and under Section 2, Sub -section (2) of the Code of Civil Procedure, the order dismissing an appeal for default is not a decree. Therefore, the relevant expression in item 2 of column 3 of Article 182 of the Limitation Act for the purpose of this case is the expression final order of the Appellate Court. The final order of the Appellate Court was ma4e on 5th August, 1955. The period of limitation is six years, and that period has to commence only from 5th August, 1955, the date of the final order of the Appellate Court. If so, the payment made by the appellant on 2nd May, 1960, is within the period of limitation, and therefore, cannot be said to be a voluntary payment, which was the only ground on which the suit of the appellant was dismissed. Since the ground urged by both the Courts below for dismissing the suit of the appellant being untenable this second appeal is allowed, and the judgments and decrees of both the Courts are set aside, and the suit of the appellant is decreed. The parties will bear their own costs throughout. No leave.;