W.S. Coutts, J.

1. This is an appeal against the order of the Additional Subordinate Judge of Hazaribagh in an execution matter. The facts are somewhat complicated and it is necessary to state them fully.

2. Raja Saroda Narayan was the holder of Gadi Serampure and, in the year 1895, he advanced money to Tikait Ram Chandra, who was the bolder of Gadi Gande, which, in consideration of the loan, was mortgaged to him. In 1905 Raja Saroda Narayan was declare to be insane and his estate was taken over by the Court of Wards. In April 1907 the Raja died leaving a widow, Ram Jagadamba Kuari. She held possession of the estate for which, however, there was a rival claimant, viz., Raja Nilkantha Narayan. On the 31st of March 1908 the Court of Ward, on behalf of Rani Jagadamba, brought suit against Tikait Krishna Prasad, the heir of Tikait Ram Chandra, to enforce the mortgage of the year 1895, by which Tikait Ram Chandra had mortgaged Gadi Gande to Raja Saroda Narayan, the husband of Jagadamba. Thin suit was No. 93 of 1908. On the 2nd of May (908 Raja Nilkantha Narain instituted a suit against Rani Jagadamba for declaration of his title to and recovery of possession of Gadi Serampure including all acquisitions made by the late holder and in the schedule to the plaint he mentioned, as one of the properties claimed, the amount due under the mortgage of 1895. This suit was No. 122 of 1908. On the 30th of June 1910, the suit brought by the Court of Wards on 'behalf of Rani Jagadamba on the mortgage was decreed in her favour and, on the 20th of January 1911, the final decree was passed. Before the passing of the final decree, however, Tikait Krishna Prasad appealed to the High Court, On the 18th of September 1911 a decree was passed in the suit which had been brought by Raja Nilkantha Narayan for recovery of Gadi Serampure and the suit was decreed in full. Against this decree the Court of Wards, on behalf of Rani Jagadamba, filed an appeal. On the 9th of April 1912, Raja Nilkantha took possession in pursuance of his decree. On the 16th of December 1912 Raja Nilkantha Narain was added by Tikait Krishna Prasad as a party respondent in the appeal against the mortgage decree which had been obtained by Rani Jagadamba. Before the decision of the appeal, on the 26th of May 1915, Raja Nilkantha died and, on the 17th of December 1915, that is, more than six months after the death of Raja Nilkantha, the appellant Tikait Krishna Prasad made an application for substitution of his heirs. The application was dropped, however, with the result that no substitution was made. On the 10th of May 1916 a decree was passed in the mortgage appeal on the basis of a compromise between Rani Jagadamba and Tikait Krishna Prasad, Subsequent to this, the appeal by Rani Jagadamba in the title suit was dismissed except in regard to certain Government Promissory notes. From that decree Rani Jagadamba has appealed to the Privy Council and the appeal is still pending.

3. I now come to the execution proceeding. On the 15th of February 1911 Rani Jagadamba applied for execution of her mortgage-decree. The execution was stayed on the 22nd of May 1911. On the 1st of November 1913 an application was made by Raja Nilkantha to be substituted in place of Rani Jagadamba in the execution proceeding. On the 3rd of January 1914, the substitution was made and, on the 2nd Marsh 1914, the execution was struck off for want of prosecution. On the 29th July 1917 Raja Nilkantha's heir, Raja Wazir Narain, applied for execution of the original mortgage-decree, dated the 20th January 1911, but this application was dismissed for want of prosecution on the 26th September 1917. On the 4th February i918 another application was filed by Raja Wazir Narain for execution of the original mortgage-decree and it is this application which has given rise to the present appeal. In his application Raja Wazir Narain claims five lakhs of rupees, which includes a sum of Rs. 61,000 odd which Raja Wazir Narain alleges that he paid to a prior decree-bolder. The execution was opposed by Rani Jagadamba on four grounds, mainly-

1. That Raja Wazir Narain was not competent to execute the decree.

2. That the first decree was incapable of execution and, in any case, the application was barred by limitation.

3. That Raja Wazir Narain should not have added to his decree a Bum of Rs. 61,000 odd, and

4. That Rs. 75,000 odd had already been paid in part satisfaction of the decree.

4. The learned Subordinate Judge found that Raja Wazir Narain stood in the shoes of Rani Jagadamba and was entitled to execute any decree which could be executed by her, He found, however, that the first decree could not be executed at all, he accordingly dismissed the application, but found that the Raja was entitled to enforce the appellate mortgage decree which had been passed on compromise. He also same to certain findings with regard to the Rs. 61,000 odd and the Rs. 75,000 odd, but, as no arguments have been addressed to us in regard to these items, it is unnecessary to consider them. Against this order, both the decree-holder and the judgment debtor have appealed, So far as the appeal on behalf of the judgment debtor is concerned, it is against the decision that the Raja is entitled to enforce the appellate mortgage-decree. The application before the Subordinate Judge was for execution of the original decree and both parties are agreed that it was beyond the scope of the case which was then before the learned Subordinate Judge to decide that the Raja was entitled to execute the appellate decree. This appeal, which is appeal No. 63, mast accordingly be decreed with costs.

5. I now come to appeal No. 59, which is the appeal by the decree-holder. The questions which arise in this appeal are--

1. Whether the original decree is capable of execution.

2. Whether the application for execution of the first decree is barred by limitation, or

3. Whether Raja Nilkantha or his son are competent to execute the decree.

6. The learned Subordinate Judge's judgment on the first point is somewhat obscure, but he appears to have decided that, because the original decree had been superseded by the Appellate Court decree, it was incapable of execution. The facts of the case in regard to this matter are that Rani Jagadamba obtained a decree against Tikait Krishna Prasad in the mortgage-suit. The Takait then appealed and, apparently because Raja Nilkantha had been successful in the title suit against the Ram, he had him added as a party-respondent in his appeal. More than six months after the death of Raja Nilkantha and after the appeal as against him had abated, he made an application to substitute the heirs of Raja Nilkantha, but he did not prosecute this application, the substitution consequently was not made and the compromise was entered into with the Rani alone. The contention of the learned counsel for the appellant is, that, no substitution haying been made of Raja Nilkanta's heirs in the appeal against the mortgage-decree) the Appellate Court decree was void as against his heirs and as against them the only decree is the original decree which, consequently, they are entitled to execute Ordinarily, this would be so, but I am not prepared to accept the proposition in this particular case. Raja Nilkantha was successful in his title suit against the Rani; but in the first place, he did not obtain a decree giving him the mortgage-decree which had been obtained by the Rani. All that he obtained was the amount due under the mortgage. It may be that he would have been entitled to sue on the mortgage but, in my opinion, he was not entitled to execute the mortgage-decree which had been obtained by the Rani. It is true that the estate did vest in him by virtue of the High Court decree but he admits that if the mortgage-suit had failed he would not have been bound by that decree, and be further contends that he is not bound by the decree of the Appellate Court. There is, therefore, no mutuality and, this being so, in my opinion, he cannot execute the original decree.

7. Moreover, even if he were entitled to execute the original decree his application would be barred by limitation. The final decree in the mortgage suit was passed on the 20th January 1911 and the first application made by Raja Nilkantha's heirs was on the 20th July 1917. This application is, on the face of it, accordingly; out of time; but it is sought to save limitation by the aid of Article 182(2) of the Limitation Act. By that Article, where there has been an appeal, limitation runs from the date of the final decree or order of the Appellate Court, or from the date of withdrawal of the appeal and the contention is that, so far as Raja Nilkantha is concerned, the date when limitation begins to run is one of three dates, viz,, the date on which the appeal abated by reason of substitution not having been made, or the date on which the appellant ceased to prosecute his application for substitution, or, finally, the date of the Appellate Court's decree. The first of these dates is the 26th of November 1915; the second is the 7th of February 1916, and the third is the 10th of May 1916. If limitation runs from any of these dates, the application for execution would be within time. The only question is, whether Raja Nilkantha's heirs an claim the benefit of any of them. I think not. First, with regard to the date, of abatement. There was no order of the High Court declaring that the appeal had abated. Under Order XXII, rule 4, clause (3), when within the time limited by law, no application is made for substitution the suit "shall abate against the deceased respondent." Bale 11 of the same Order makes the whole of the Order applicable to appeals. Consequently, in this case the appeal, as against Raja Nilkantha and his heirs, abated by operation of law and net on account of any final decree or order of the Appellate Court. In such a case Article 182(2) does not, in my opinion, apply. This was the view which was taken in Fatal Husen v. Raj Bahadur 20 A. 124 : A.W.N. (1897) 218 : 9 Ind. Dec. (n.s.) 440. That was a case under Article 179 of the old Limitation Act, which is exactly the came as the present Limitation Act, except that withdrawal of appeal has been provided for, and in that case the learned Judges said : "it is the decree of the Munsif which he now seeks to execute; he contends, however, that clause (2) of column 3 of Article 179 applies; the words are 'where there has been an appeal, the date of the final order or decree of the Appellate Court.' It is manifest to us that an order by which an appeal abates is not the final decree or order contemplated by that clause; it cannot be executed and the only extant decree, after the making of such an order, is the original decree of the Munsif." That case is on all fours with the present case and, in my opinion, it expresses the correct view of the law. It is true that, in the case of Muhammad Razi v. Karbalai Bibi 5 Ind. Cas. 473 : 32 A. 136 : 7 A.L.J. 58, a contrary view was expressed and the learned Judges relied on the case of Mahomed Mehdi Bella v. Mohini Kanta Saha Choudhury 34 C. 874. I have examined that decision, however, and I can find nothing in it to support the conclusion. Moreover, that was not a case under Article 179 end it is on that ground that the learned Judges distinguished the case of Fatal Pwen v. Rag Bahadur 20 A. 124 : A.W.N. (1897) 218 : 9 Ind. Dec. (n.s.) 440, from the case which was then before them. There is alto a decision in the case of Ramgati Dhar v. Nagendra Lal Chowdhury 1 C.L.J. 17 Notes in which it was held that abatement is a final order. No reason, however, is given for that decision and, as I have already said, the case of Fazal Husen v. Raj Bahadur 20 A, 124 : A.W.N. (1897) 218 : 9 Ind. Dec. (n.s.) 440 expresses the correct view of the law. I am strengthened in this view by the decision in the oases of Botuk Nath v. Munni Dei 23 Ind. Cas. 644 : 36 A. 284 : 18 C. W. N. 740 : 12 A.L.J. 596 : 19 C.L.J. 574 : 16 Bom. L.R. 360 : 27 M.L.J. 1 : 16 M.L.T. 1 : 1 L.W. 729 : (1914) M.W.N. 437 : 41 I.A. 104 (P.C.) and of Abdul Majid v. Jawahir Lal 28 Ind. Cas. 649 [LQ/CalHC/1912/72] : 36 A. 350 : 12 A.L.J. 624 : 16 Bom L.R. 395 : 18 C.W.N. 963 : 19 C.L.J. 626 : 27 M.L.J. 17 : (1914) M.W.N. 485 : 16 M.L.T. 44 : 1 L.W. 463 (P.C.). These are oases of non-prosecution of appeals to the Privy Council where, by reason of the operation of the rules governing the procedure in oases of appeal to the Privy Council, the appeal was dismissed for want of prosecution without an order of His Majesty in Council. In those oases it was held that dismissal for non-prosecution did not give afresh starting point for limitation end the reason given by their Lordships was that the appeal had not been dismissed by an order of His Majesty in Council but by operation of the rules. In Abdul Majid v. Jawahir Lal 28 Ind. Cas. 649 [LQ/CalHC/1912/72] : 36 A. 350 : 12 A.L.J. 624 : 16 Bom L.R. 395 : 18 C.W.N. 963 : 19 C.L.J. 626 : 27 M.L.J. 17 : (1914) M.W.N. 485 : 16 M.L.T. 44 : 1 L.W. 463 (P.C.) their Lordships of the Privy Council said: The chief matter of argument before this Board was a contention that the decree which it is sought to enforce had been constrictively turned into a decree of His Majesty in Council and assigned to the date of the 13th of May 1901, by virtue of the dismissal of the appeal for want of prosecution on that date, and that, therefore, the period of limitation was twelve years from the 13th of May 1901 by virtue of Article 180 of the Indian Limitation Act. Their Lordships see no foundation for this contention, which appears to have been the basis of the decision of the Courts below. The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense, be regarded as an order adopting or confirming the decision appealed from. It merely recognised, authoritatively, that the appellant had not complied with the conditions under which the appeal was open to him and that, therefore, he was in the same position as if he had not appealed at all. To put it shortly, the only decree for sale that exists, is the decree, dated the 8th of 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 bag become merged. The period of limitation applying to the enforcement of it, at all material times, was, therefore, a period of three years. The respondents' right is, therefore, barred by limitation."

8.Although these are not cases of abatement, they are cases of dismissal for non-prosecution, and it appears to me that the principle which has been laid down in those oases mast apply also to the present case. The teat appears to be whether there is any final order or decree of the Appellate Court which can be executed and, in the case of abatement, there is not. It has been suggested that, if this view of the law be taken, the decree bolder is prejudiced by reason of an appellant not taking steps for substitution. This, however, is not so. Even if an appeal be filed, it is always open to the decree-holder to take out exaction and, if he does not do so, he cannot complain if he suffers by reason of not exercising his rights. On the ground of abatement, therefore, the appeal fails.

9.There remains the question whether the appellant is entitled to count limitation from the date of the Appellate Court decree. The contention is that, even although he was no party to the Appellate Court decree, be was entitled to make use of the decree, because there has been an appeal. It is difficult to understand how the appellant can claim this as a starting point for limitation and, at the same time, say that the Appellate Court decree is not an effective decree. This contention of the appellants, therefore, also fails and I would dismiss this appeal with caste.

Sultan Ahmad, J.

10. Appeal No. 63, I agree' Appeal No. 59. I agree with the order that has been made by my learned brother. I, however, desire to summarise my conclusions on the various points raised in this appeal.

(1). Wazir Narain, in my opinion, cannot execute the original decree when Nil kantha, through whom he claims, was neither a party to the original nor to the appellate decree. No authority has bean pleased before OS for a contrary proposition.

(2). If Wazir Narain claims to execute the original decree, as having stepped in the shoes of Rani Jagadamba, when be mast be bound by the appellate decree in which the original decree is merged, and as such, the only subsisting decree capable of execution is the appellate decree and not the original decree. See Kailash Chandra Basu v. Girja Sundari Debt 14 Ind. Cas. 299 [LQ/CalHC/1912/141] : 39 C. 925 : 16 C.W.N. 658.

(3). The application to execute the original decree is, in my opinion, clearly barred by limitation. Wazir Narain cannot get the benefit of Article 132, Schedule I to the Limitation Act and soleplate the time against him from the date of the abatement of the appeal against Nilkantha, as I am clearly of opinion that the order of abatement, if any, cannot, constitute final order or decree" within the meaning of Article 182 of the Limitation Act; Batuk Nath v. Munni Dei 23 Ind. Cas. 644 : 36 A. 284 : 18 C. W. N. 740 : 12 A.L.J. 596 : 19 C.L.J. 574 : 16 Bom. L.R. 380 : 27 M.L.J. 1 : 16 M.L.T. 1 : 1 L.W. 729 : (1914) M.W.N. 437 : 41 I.A. 104 (P.C.) and Abdul Majid v. Jawahir Lal 28 Ind. Cas. 649 [LQ/CalHC/1912/72] : 36 A. 350 : 12 A.L.J. 624 : 16 Bom L.R. 395 : 18 C.W.N. 963 : 19 C.L.J. 626 : 27 M.L.J. 17 : (1914) M.W.N. 485 : 16 M.L.T. 44 : 1 L.W. 463 (P.C.) apply in principle with equal force to the present case.

(4). It is sought to take advantage of the date of the appellate decree to save limitation, and reliance has been plated on Balaram Das Bhagat v. Raja Mukanda Deb 10 Ind. Cas. 370. Even if the decision of Balaram Dad Bhagat v. Haja Mukanda Deb 10 Ind. Cas. 370 correctly lays down the law, it is clearly distinguishable, inasmuch as the mortgagor who wanted to execute the original decree was a party to that decree though not a party to the appellate decree. Wazir Narain, not being a party to the original or to the appellate degrees, cannot, in my opinion, get any benefit from the date of the appellate decree to save limitation.

11. These were the four grounds on which this appeal was pressed before us and, as they fail, I agree that it must be dismissed with costs.