O Kinealy and Trevelyan, JJ.

1. This appeal arises out of an application for execution ofa decree. Previously in a litigation between the two parties, the defendantsappealed from the decree of the first Court. That appeal was rejected on theground that it was presented after time, and defendants then filed a secondappeal to this Court which was dismissed with costs. On plaintiff seeking totake out execution of the decree, it was objected that the time ran from thedate of the decree of the first Court, and that the application was barred. Wedo not think that that contention is correct. Section 4 of the Limitation Actsays: "Every suit instituted, appeal presented, and application made, afterthe period of limitation prescribed therefore by the second schedule heretoannexed, shall be dismissed, although limitation has not been set up as adefence." Section 5.* says: "If the period of limitation prescribedfor any suit, appeal or application expires on a day when the Court is closed,the suit, appeal or application may be instituted, presented or made on the daythat the Court re-opens." That shows that what is meant by the wordsappeal presented" in the Limitation Act is an appeal presented in themanner prescribed in Section 541 of the Code of Civil Procedure, that is tosay, presented by a proper person to the proper Court.

2. Article 179 of the second schedule of the Limitation Actsays: "Where there has been an appeal, limitation begins to run from thedate of the final decree or order of the Appellate Court." In this appealit has been contended, on behalf of the respondent, that the words wherethere has been an appeal," mean, where there has been an appeal presentedand admitted, and in support of that he refers us to a case of Dianatullah Begv. Wajid Ali Shah I.L.R. All. 438. There are no such words in Sections 4 and 5as "appeal admitted," and there is nothing in those articles of theLimitation Act, or in Section 541 of the Code of Civil Procedure, that wouldadmit of such a construction.

3. We are; therefore, of opinion that the words, "wherethere has been an appeal," mean where there has been an appeal in theordinary sense and in the sense in which it is used in the other portions ofthe same Act, viz., when a memorandum of appeal has been presented in Court. Wethink that the lower Courts are wrong in saying that execution is barred We,accordingly, set aside the orders of the lower Courts with costs.

* Proviso where Court is closed when period expires.

[Section 5: If the period of limitation proscribed for anysuit, appeal or application expires on a day when the Court is closed, thesuit, appeal or application may be instituted, presented or made on the daythat the Court re-opens:

Proviso as to appeals and applications for review.

Any appeal or application for a review of judgment may beadmitted after the period of limitation prescribed therefor, when the appellantor applicant satisfies the Court that he had sufficient cause for notpresenting the appeal or making the application within such period.]

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Akshoy Kumar Nundivs. Chunder Mohun Chathati and Ors.(04.12.1888 - CALHC)