Wort, Ag. C.J.

1. The learned Judge in the Court below has dismissed the application for execution, first on the ground that it was necessary to take out a succession certificate, and secondly that the application was barred by limitation.

2. The applicant was the present holder of an impartible estate, the last holder of which had obtained the decree which was under execution. The decree was obtained on 1st October 1924. Some only of the defendants appealed to the High Court, and on 6th Jan. 1926, a peremptory order was made directing those defendants to pay certain printing costs within seven days: upon failure to comply with that order (as the nature of the order which I have stated suggests), the appeal would be dismissed without any further reference to the Court. Now, it is perfectly clear that if the order of 13th January 1926, which was seven days after the order made by the High Court and the date upon which the appeal formally stood dismissed, be taken, it is clear that the applicant was not precluded by reason of Section 48 of the CPC from pursuing his remedy in execution. If however 13th January 1926 be not the date, but an earlier one, it is equally clear that the application is barred by the provisions of the section to which I have referred.

3. Dr. Mitter who appears on behalf of the judgment-debtor relies upon the decision of their Lordships of the Judicial Committee of the Privy Council in 36 All 3501 for the purpose of contending that the date upon which the appeal stood dismissed being 13th January 1926 was not the date from which limitation ran. In 36 All 3501 the mortgagor had appealed to their Lordships of the Judicial Committee of the Privy Council, and that appeal had been dismissed before their Lordships Board for want of prosecution. The contention of the decree-holder there was that the period of limitation should run from the date of the order of their Lordships formally dismissing the appeal for want of prosecution. But in the course of the judgment which was delivered by Lord Moulton this observation was made:

To put it shortly, the only decree for sale that exists is the decree, dated 8th April 1893, and that is a decree of the High Court of Allahabad. The operation of this decree has never been stayed, and there is no decree of His Majesty in Council in which it has become merged.

4. The Article of limitation which was being considered in that case was the present Article 183, Limitation Act:

To enforce a judgment, decree or order of any Court established by Eoyal Charter in the exercise of its ordinary original civil jurisdiction, or an order of His Majesty in Council.

5. As regards the case before us, the section which governs the matter is Section 48, Civil P.C. But the question immediately arises--what is meant by the word "decree" as used in that section, and the matter which arises out of the consideration of that point is the date from which limitation should run Now, the construction which Dr. Mitter would have us place upon Section 48 of the Code would lead in my judgment to an anomaly. The Article which was discussed before their Lordships of the Judicial Committee of the Privy Council in AIR 1932 165 (Privy Council) was Article 182, Lim. Act, the third column of which reads:

The date of the decree or order, or (where there has been appeal) the date of the final decree or order of the Appellate Court.

6. And Sir Dinshah Mulla, in delivering the judgment of their Lordships of the Privy Council, made this observation:

Their Lordships think that nothing would be gained by discussing these varying authorities in detail. They think that the question must be decided upon the plain words of the Article where there has been an appeal, time is to run from the date of the decree of the Appellate Court. There is in their Lordships opinion no warrant for reading into the words quoted any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say.

7. Their Lordships decision in this regard has been construed by a Divisional Bench of this Court in Krishna Kant Prasad v. Radhey Singh (1938) AIR Pat. 79 as applying to a case where an appeal has been dismissed for default of payment of a proper court-fee. Now, there can be no doubt that we are bound by the decision of this Court in regard to that matter and we are bound to come to a conclusion contrary to the contention put forward by Dr. Mitter as regards the decision of their Lordships of the Privy Council in AIR 1932 165 (Privy Council) Dr. Mitter in the course of his argument pointed out that their Lordships in the earlier part of their judgment expressly stated that not only was the appeal dismissed on the ground of irregularity but also upon its merits; and it is contended therefore that, unless there has been some judicial decision upon the merits, the date from which limitation would run would be the date upon which the last judicial decision upon the merits had been made, and not from the later date as in this case, the date of the dismissal for default. It seems to me, quite apart from the binding authority of the decision to which I have just referred, viz. Krishna Kant Prasad and Others Vs. Radhey Singh, that unless the view which is taken by that decision be adopted, it would lead to an anomalous position as I have already stated. According to the decision of the Privy Council reported in AIR 1932 165 (Privy Council) under Article 182 in determining the period of limitation, the date of the order of the Court of Appeal would be taken, but according to the argument when we come to Section 48, Civil P.C. not the date which is taken under Article 182 should be the date from which limitation would run but the earlier date.

8. In my judgment that is an impossible contention, the contention being (to repeat myself in somewhat different words) that the expression decree in Section 48 of the Code means a decree of the Court of first instance. Section 48 in my judgment provides the maximum period during which the application for execution could be taken out, but the period from which limitation would run should be the period provided by the Lim. Act.

9. Again to revert to the statement I made a moment ago, I would come to the con. elusion that we are bound by the recent decision of our own Court reported in Krishna Kant Prasad and Others Vs. Radhey Singh, with regard to this matter; and it would only be in case we are of the opinion that that decision is clearly wrong that we could possibly refer the matter to a Full Bench for decision. In my judgment that point fails.

10. So far as the other question is concerned, the necessity for taking out a succession certificate, the matter has been determined in the recent unreported decision of this Court (Misc. Appeal No. Ram Ranbijaya Prasad Singh Vs. Parmatmanand Singh, in which Agarwala and Madan, JJ., in precisely similar circumstances, came to the conclusion that succession certificate was not required. There can be no dispute that succession to an impartible estate is dependent and is to be determined upon the footing of survivorship.

11. There is abundant authority for that conclusion, one of which is the well-known decision which is in Baijnath Prashad Singh v. Tej Bali Singh AIR (1921) P.C. 62 and, once that question is determined, it seems to me that it necessarily follows that we are bound to hold that no succession certificate is required. Dr. Mitter contends that in some sense this is immovable property and relies upon the decision in AIR 1932 216 (Privy Council) .

12. But as regards the relevant matters relied upon by Dr. Mitter, it was a case in which one of the widows was awarded certain property as being the separate property of her deceased husband. That in no way assists us in coming to a conclusion with regard to this matter.

13. In my judgment the Judge in the Court below was clearly wrong in holding that this decree for costs which certainly formed part of the impartible estate necessitated a succession certificate. The appeal in my opinion succeeds and the decision of the learned Judge in the Court below is set aside. The decree-holder will be entitled to proceed with the execution.

14. The appeal is allowed with costs throughout. Attachment will continue so far as regards one-half of the sum ordered to be attached in Privy Council Appeals Nos. 36 to 39 of 1930.

Manohar Lall, J.

I agree.