(Appeal (disposed of on 28-2-1945) against the order of the District Court, Chingleput, dated 28-10-43 and made in A.S. No. 107 of 1943 preferred against the order of the Court of the District Munsif, Conjeevaram, in E.A. No. 1102 of 1942 in S.C.S. No. 157 of 1938, Sub Court, Chingleput.)

The only point for consideration in this appeal is whether E.A. No. 1102 of 1942 on the file of the Chingleput Subordinate Judges Court out of which this appeal arises was barred by limitation or not. Both the lower Courts have found that it was not barred by limitation. The decree was passed on 11th November 1938. The defendant was ex parte. This petition was filed on 25th July 1942. The final order on the previous E.P. No. 287 of 1939 was passed on 5th July 193

9. But it was alleged for the decree-holder that the defendant made an application, I.A. No. 384 of 1939, to set aside the ex parte decree in the suit and that an appeal was preferred against the order dismissing that application and that appeal was dismissed as incompetent and therefore the period of limitation commenced on 5th August 1940, the date on which the appeal against the petition to set aside the ex parte decree was disposed of. It is contended for the appellant that there was no final order by an appellate Court as the appeal itself was not maintainable and consequently the date of the dismissal of the appeal cannot furnish a starting point of limitation. That an appeal was filed is a fact and that it was filed in the Court to which appeals from the Court which passed the original decree would lie ordinarily under the Civil Courts Act is not disputed. But what is stated is that against order in such proceedings of a small cause nature no appeal is provided and consequently the order in the appeal would not furnish a starting point of limitation. It is not disputed that if an appeal lay and the order had been passed that would furnish a starting point of limitation in this case, but since it is stated that the appeal was incompetent any order passed thereon cannot be said to be an order as contemplated in Art. 182(2) of the Limitation Act which runs thus,

For the execution of a decree or order of any Civil Court not provided for by Art. 183 or by S. 48 of the Code of Civil Procedure, 1908. Three years from (where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal.

Therefore, the only essentials are that there must have been an appeal and an order of the appellate Court. In this case an appeal was filed and that was filed in the Court to which appeals from the Court which passed the decree ordinarily lay, and that appeal was dismissed.

The interpretation of this Article had to be considered by the Privy Council in Nagendranath De v. Sureschandra De (60 Cal. 1 at p. 5 = 36 L.W. 7 (P.C.) and this is what was observed by their Lordships,

There is no definition of appeal in the Civil Procedure Code, but their Lordships have no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a Subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent.

In this case there was an appeal though it was incompetent, not in the sense that it was filed in a wrong forum but on the ground that no appeal lay. But even if it was an incompetent appeal, an order in that appeal would give a starting point of limitation under Art. 182(2). The decision in Abdul Khadir v. Samipandia Thevar (43 Mad. 835 [LQ/MadHC/1920/136] = 12 L.W. 304) cited for the appellant has no application. There the appeal was not presented to the proper Court, and it was returned for presentation to the proper Court. It was said that such an order was not the final order of an appellate Court. The decision in Byyareddi v. Gopal Rao (57 Mad. 741 [LQ/MadHC/1933/316] = 39 L.W. 499) also has no application to the facts of this case. There an appeal was filed out of time and a petition to excuse the delay under S. 5 of the Limitation Act had been filed. But that petition was dismissed. The appeal could have been considered only if that petition was allowed. Hence it was held that there was no appeal filed in that Court because the delay was not excused. By reason of Sub-S. 3 of R. 1 of O. 41 the Court can in no way deal with the appeal before the petition to excuse the delay is considered. There was therefore no appeal at all before that Court to pass any order. The order rejecting the petition to excuse the delay was not an order on the appeal. The decision in Ramratan v. Upendra Chandradas (68 I.C. 727) was given before the decision of the Privy Council referred to above in Nagendranath De v. Sureschandra De (60 Cal. 1 at p. 5 = 36 L.W. 7 (P.C.). Both the Courts were therefore perfectly justified in acting on the observations of the Privy Council in Nagendranath De v. Sureschandra De (60 Cal. 1 at p. 5 = 36 L.W. 7 (P.C.) quoted above and finding that even though the appeal was incompetent its dismissal will furnish a fresh starting point of limitation under Art. 182(2). Vide also the observations of Sir George Lowndes in the course of the arguments in Nagendranath De v. Sureschandra De (36 C.W.N. 803 at p. 805 (P.C.). The decision in Velaguru Asari v. Suppa Naicken (1943 (2) M.L.J. 678 = 57 L.W. 9) cited for the appellant also has no bearing on the facts of this case. There the question considered was about Art. 181 with regard to an application for a final decree and there was no occasion in that case to consider the effect of the appeal as contemplated by Art. 182(2) with reference to a petition for execution of a decree.

The appeal fails and is dismissed with costs.

Leave refused.