(1) It is urged on behalf of the appellant that the execution petition which has given rise to this appeal is barred by limitation. That contention does not appear to be correct.
(2) The suit out of which the execution under appeal arises was decreed on 25.7.1949. The appeal against that decree was dismissed on 22.12.1950. As against the decree and judgment of the first appellate Court a second appeal was filed. In that appeal , an interim stay wits granted but when the appeal came up for admission, the same was dismissed summarily on 25.7.1954. We are now to consider whether that execution petition was filed within time.
(3) Under Art, 182 of the Limitation Act, which is the relevant Article for our purpose, an execution has to be levied within three years from the date of the decree but if these has been an appeal , the execution has to be dispute that the expression 'appeal ' found in Art, 182 includes within its scope a second appeal in that his case was not admitted and therefore it should not be considered its an appeal as contemplated by Art 182. I do not think that there is any basis in law for this contention. What Art 182, requires is a properly instituted appeal : the result is immaterial. The contention of the learned counsel for the appellant that the appeal in question was not disposed of on merits is not correct. A dismissed of an appeal summarily is certainly a disposal on merits.
(4) The learned counsel for the appellant has invited my attention to various decisions. But none of those decisions really bear on the point under consideration. In every one of those decisions, the Court came to the conclusion that the appeal under consideration was not properly instituted. In other words, in the eye of the law there was no appeal. But that is not the position here.
(5) In the result, this appeal fails and the same is dismissed. Respondent is not represented in this Court . Hence there will be no order as to costs.
(6) Appeal dismissed.