- (1.) -The only question to be decided in this appeal, which arises out of an execution proceeding is whether the decree under execution is barred by limitation. The first Court held that the decree was not barred, but the High Court has come to the opposite conclusion, and the decree-holder has, after obtaining a certificate under S. 110, Civil P. C., appealed to this Court.
(2.) The facts may be briefly stated as follows. On 21st August 1940, a preliminary mortgage decree was passed ex parte in a suit instituted by the appellant to enforce a mortgage. On 19th September 1940, the judgment-debtor made an application under O. 9, R.13, Civil P. C, for setting aside the ex parte decree, but this application was rejected on 7th June 1941. On 11th July 1941, the judgment-debtor filed an application under S. 36, Bengal Money-lenders Act. for reopening the preliminary decree, but this application was dismissed for default of appearance on 20th December 1941. Thereafter a final mortgage decree was passed in favour of the appellant, on 22nd December. The judgment, debtor then made an application under O. 9, R. 9, Civil P. C. for the restoration of the proceedings under. S. 36, money-lenders Act. The application was, however, dismissed on 1st June 1942, both on the ground that no sufficient cause for the non-appearance of the applicant and his failure to take steps in the proceedings was shown and on the ground that no purpose would be served by reopening the preliminary decree after the final decree had been passed. The judgement- debtor thereafter preferred an appeal to the High Court at Calcutta from the decision dismissing his application under O. 9, R 9, but the appeal was dismissed for non-prosecution, on 3rd July 1944. On 9th April 1945, the appellant filed an application for executing the decree against the original judgment-debtor, though he had died previously, and this application was dismissed for default on 11th May 1945. On 2nd June 1945, the present application for execution was filed, and the question which we have to decide is whether this application is in time.
(3.) It is quite clear that the application for execution having been made more than three years after the date of the final decree, it must be held to be time-barred, unless, as has been contended before us, the case falls under either cl. 2 or cl. 3 of Art. 182, Limitation Act. Under these clauses, time to make the application begins to run from- "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 "3. (Where there has been a review of judgment) the date of the decision passed on the review . . .";