King, J - (1.)This appeal arises out of an application by the decree-holder in O.S. No. 24 of 1929 on the file of the Principal Subordinate Judge, Vizagapatam, to execute against defendants 2, 6 and 7, the decree which he obtained against them ex parte on 5 March, 1930. There was an application to the Subordinate Judge to set aside this ex parte decree which was dismissed. Against this order of dismissal defendants 1 and 3 to 5 appealed to the High Court. On 20 October, 1932, the High Court gave judgment allowing the appeal, and extending its benefits to defendants 2, 6 and 7 also on condition that they deposited the decree amount within three months. This deposit was not however made, and so as against defendants 2, 6 and 7 the ex parte decree stood confirmed as from 20 October, 1932. The present application for execution was made on 15 August, 1935. It has been dismissed by the learned Subordinate Judge as being filed more than three years after the date of the decree and the question before us is whether that order of dismissal is in accordance with law.
(2.)The law which applies to these facts is formulated in Art. 182 of the Limitation Act. The description of the application in column 1 is, For the execution of a decree or order of any Civil Court.... The period of limitation in column 2 is three years. The time from which period begins to run in column 3 is (1) the date of the decree or order, (2) (where there has been an appeal) the date of the final decree or order of the Appellate Court.... If the first date is to be chosen in the present case the execution application is clearly barred - if the second, it is clearly within time, and the very simple question for our determination is whether the words where there has been an appeal apply to the present case or not. Simple, however, as these words are, they have been in the past interpreted in two distinct ways. According to the first interpretation appeal can and must mean only an appeal against the actual decree or order sought to be executed. The second interpretation gives it a wider meaning which for the present we may best express in the words of Venkataramana Rao, J., in Koyakutti V/s. Veerankutti as: An appeal in the suit which is likely to affect the decree sought to be executed.
(3.)Although this more liberal interpretation was adopted more than fifty years ago in Narsingh Sewak Singh V/s. Madho Das (1882) I.L.R. 4 All. 274 and Lutful Huq V/s. Sumbhudin Pattuck (1881) I.L.R. 8 Cal. 248, the current of authority thereafter set strongly against it, so that by 1927 the learned Judges who decided Fakir Chand Mandal V/s. Daiba Charan Parni (1927) I.L.R. 54 Cal. 1052 were able to hold that the first view was both clear upon principle and concluded by authority . Then came the decision of the Privy Council in Nagendranath De V/s. Sureshchandra De (1932) 63 M.L.J. 329 : L.R. 59 I.A. 283 : I.L.R. 60 Cal. 1 (P.C.) and of the four cases decided since then, Nagappa Bandappa V/s. Gurushantappa Shankrappa (1932) I.L.R. 57 Bom. 388, Firm Dedhraj Lachminarayan V/s. Bhagwan Das (1937) I.L.R. 16 Pat. 305, Ahammad Kutty V/s. Kottekkat Kuttu (1932) 64 M.L.J. 251 : I.L.R. 56 Mad. 458 and Koyakutti V/s. Veerankutti only one has failed to take the more liberal view.