- (1.) THIS is an execution second appeal by the decree-holder against an order of the appellate court holding that the execution application filed by him on 31. 5. 63 is barred by limitation under Art. 182 (5) of the Limitation Act.
(2.) THE previous execution application which was admittedly within limitation was filed on 8. 7. 57. Against this application the judgment-debtor filed an objection on 28. 9. 57. This objection was dismissed by the executing court on 8. 3. 58. THE judgment - debtor preferred a first appeal and a second appeal against the order of the executing Court. THEse appeals were dismissed on 15. 10. 58 and 7. 12. 60 respectively. Before the decision of the second appeal filed by the judgment-debtor the execution application dated 8. 7. 57 was dismissed for default on 27. 1. 59. The contention on behalf of the decree-holder is that the date of the final order passed on the execution application filed on 8. 7. 57 is 7. 12. 60, namely the date on which the execution second appeal filed by the judgment-debtor against the order of the executing court was dismissed. The contention on behalf of the judgment - debtor on the other hand is that 27. 1. 59 should be taken to be the date of the final order passed on the application dated 8. 7. 57. I have heard the learned counsel for the parties and am of the opinion that the contention on behalf of the decree-holder is correct. A similar question arose for decision before a Full Bench of the Madhya Pradesh High Court in C. P. Syndicate vs. Firm Hasanali (1 ). It was held as follows: - "a final order must be held to be an order which finally determines the rights of the parties so far as the Court passing the order is concerned. The order passed by the executing court dismissing an objection to the execution would also, therefore, be a final order. But when an appeal is preferred from the order of dismissal to the higher court, finality attaches only to the appellate order or decree, whichever party may file the appeal, and in this view, limitation for execution begins to run from the date of the appellate decision and not from the date of the order of the executing court dismissing the objection. " On behalf of the judgment-debtor two decisions were referred to. Both these decisions are distinguishable. The decision in Shah Sankal Chand vs. Punam Chand (2) was on clause (2) of Article 182. In Asa Ram vs. Malchand (3) no execution appeal had been filed. These decisions are therefore of no help in deciding the present case. I accordingly allow the appeal, set aside the order of the appellate court and remand the execution case to the executing court for executing the decree in accordance with law. In the circumstances of the case, I direct that parties shall bear their own costs of this appeal. .;