John Beaumont, J.

1. The application for execution, No. 72 of 1940, is clearly barred by Clause 1 of Article 182 unless it can be brought within one of the later paragraphs. Clause 2 has no application, since there was no appeal against, or affecting the validity of, the decree; nor does Clause 3 apply, since there was no application for review of judgment. Clause 4 is irrelevant so far as this case is concerned. The question, therefore, is whether the case falls within Clause 5. To bring the case within that clause it must be shown that there was an application made in accordance with law to the proper court, either for execution, or to take some step in aid of execution, of the decree, and if there was such an application time runs from the date of the final order passed thereon. It is necessary, therefore, to look somewhat closely at the facts, which are not in dispute, to see whether the requisite application was made and finally disposed of within three years.

2. His Lordship then stated the facts set out above and continued: The High Court of Madras in the judgment under appeal took the view that from July 10, 1935, there was no execution petition or application outstanding, and that the petition No. 72 of 1940, being presented more than three years after that date, was out of time. Their Lordships are unable to appreciate this view, which ignores the fact that on July 10, 1935. an application by one of the judgment-debtors to set aside the "attachment "was pending on the records of the court, and the further fact that on September 27, 1938, this application was finally disposed of by an order made by the High Court of Madras in E.P. 418 of 1934, which could not have been done had that petition terminated in July, 1935.

3. Subject to the question whether the High Court of Madras was the proper court within Article 182, Clause 5, their Lordships are clearly of opinion that the appellant brings his case within both branches of that clause. Execution petition No. 418 of 1934 was an application made according to law for execution of the decree, and it was finally disposed of by the order of the Court of Appeal made on September 27, 1938, which brings the case within the first branch. Further, the application to the Court of Appeal of December 3, 1936, to set aside the order of the Subordinate Court raising the attachment was an application according to law to take a step in aid of execution of the decree. There has been some difference of opinion in the courts in India as to what amounts to taking a step in aid of execution, and the judgment under appeal discusses various decisions, including a decision of the High Court of Madras in Kuppuswami Chettiar v. Rujagopala Aiyar (1922) I.L.R. 45 M. 466, in which it was held that there could not be a step in aid of execution if there was not an application for execution then pending, and another decision of the same court in Krishna Patter v. Seetharama Patter (1926) I.L.R. 50 M. 49, in which it was held that a step in aid of execution must be one in furtherance of execution and not merely one seeking to remove an obstruction to possible future execution. Their Lordships do not find it necessary to express any opinion on these questions, since in the present case there was at all material times an application for execution pending, and on any view of the matter an application to set aside an attachment is a step, in the circumstances the only step open, in aid of execution.

4. The only other point to be considered, and this was the point principally stressed on this appeal, is whether the High Court of Madras was the proper court within Article 182, Clause 5. Explanation 2 to Article 182 enacts that the proper court means the court whose duty it is to execute the decree or order. In Govinddas Rajaramdas v. Ganpatdas Narotamdas (1923) I.L.R. 47 B. 783, an Appeal Bench of the Bombay High Court held that an appeal to the High Court against an order in execution was not an application according to law to the proper court, and Macleod, C.J. stated (1): "It certainly cannot be said that an "appeal to the High Court against an order in a dharkast is an "application in accordance with law to the proper court for "execution. The High Court is not a court whose duty it is to "execute decrees passed by the lower courts." This view was accepted by the High Court in the judgment under appeal, but their Lordships think that it is fallacious. Under Section 107 of the Code of Civil Procedure an appeal court has the same powers, and is required to perform, as nearly as may be, the same duties as are conferred and imposed by the Code on courts of original jurisdiction. Where an application for execution is dismissed by the lower court, the appeal court is the proper, and indeed, the only, court which can then execute the decree. No doubt in practice a High Court does not itself generally execute the decrees of lower courts ; normally it remands the case to the lower court with directions to execute according to law on the basis of the High Courts decision; but in a proper case the High Court would no doubt execute the decree or order itself. In their Lordships view there can be no doubt that the High Court of Madras was the court whose duty it was to execute the decree of November 3, 1934, in the manner asked for in E.P. 418 of 1934, if such manner were legal, after the attachment had been raised by the lower court. The appellant, therefore, has brought himself within Clause 5 of Article 182, and his petition No. 72 of 1940 being presented within three years of the order of the High Court finally disposing of the execution petition No. 418 of 1934 is in time. Their Lordships will, therefore, humbly advise His Majesty that this appeal should be allowed, and that the matter should be remitted to the High Court of Madras with directions that the execution petition No. 72 is within time and should be dealt with according to law. The respondents must pay the costs to date of execution petition No. 72 of 1940, including the costs of this appeal.