1. This is a decree-holder's appeal in execution proceedings. The decree-holder Mahabir Singh instituted a suit for ejectment and possession against one Khub Chand. On 30th June 1930 the suit was dismissed by the Munsif of Bulandshahr. The plaintiff appealed and on 17th August 1931 the appeal was allowed. The defendant thereupon appealed to the High Court. His appeal was dismissed on 25th February 1932. He obtained leave to appeal against this decision and filed a Letters Patent appeal. While this appeal was pending Khub Chand died on 5th April 1934. On 2nd August 1934 the High Court declared that in consequence of Khub Chand's death, the Letters Patent appeal had abated and further that the plaintiff-respondent Mahabir Singh was entitled to his costs of the Letters Patent appeal from the assets of the deceased appellant. The plaintiff appellant Mahabir Singh on 20th April 1936 instituted execution proceedings in respect of the subject-matter of the suit, as distinct from the costs awarded to him in the Letters Patent appeal, against the legal representatives of the deceased Khub Chand. These execution proceedings were resisted in the Munsif's Court on the ground that they were barred by limitation. The learned Munsif dismissed the objection to the proceedings. An appeal from his decision was allowed by the learned District Judge who held that the only order of a final character which can be executed in respect of the appeal is dated 25th February 1932. In respect of it the execution proceedings which started on 20th May 1936 being beyond three years are barred by limitation.
2. The decree-holder Mahabir Singh appeals from the decision of the learned District Judge. The short point for consideration is whether the order of the High Court of 2nd August 1934, declaring that the Letters Patent appeal had abated in consequence of Khub Chand's death and awarding the plaintiff Mahabir Singh costs of that appeal, is or is not a final order within the meaning of Article 182, Limitation Act. Learned Counsel for the appellant maintained that when the High Court declared that the Letters Patent appeal had abated it finally and judicially disposed of the dispute between the parties and that therefore limitation began to run from 2nd August 1934 and not from 25th February 1932, the date of the High Court's order in dismissing the judgment-debtor's second appeal. In support of this contention learned Counsel relied upon the decision in Mohammad Razi v. Karbalai Bibi ('10) 32 All. 136. In that case a Bench of this Court held that
an order declaring an appeal to have abated is in effect an affirmation of the decree of the Court below and limitation only begins to run against the decree-holder from the date of such order and not from the date of the decree under appeal.
3. Learned Counsel further relied on certain observations in the judgment of the case in Fazl-ul-Rahman v. Shah Mohammad Khan ('08) 30 All. 385. It was contended, on the other hand, for the respondents that the order declaring the Letters Patent appeal to have abated was not a final order disposing of the dispute between the parties and that limitation began to run from the date of the dismissal of the second appeal by the High Court. In support of this contention reliance was placed upon two decisions of the Privy Council in Batuk Nath v. Munni Del ('14) 1 A.I.R. 1914 P.C. 65 and Abdul Majid v. Jawahir Lal ('14)1 A.I.R. 1914 P.C. 66. In both cases the Board held that the dismissal of an appeal which had been preferred in the Privy Council for want of prosecution is not a final decree of an appellate Court within the meaning of Article 179, Clause (2) of Schedule 2, Limitation Act of 1877 which corresponds to Article 182 of the present Limitation Act of 1908. Learned Counsel argued that an order dismissing an appeal for want of prosecution was on all fours with an order declaring an appeal to have abated in respect that the heirs of the deceased party had not been brought upon the record. In my opinion there is good deal of substance in this contention. In neither case does the Court investigate the merits of the dispute between the parties. On the other hand it cannot be said that in declaring an appeal to have abated the Court does not act judicially and finally dispose of the appeal. The effect of an order of dismissal for want of prosecution by the Privy Council was considered by the Privy Council in Abdulla Asghar Ali v. Ganesh Das Vig . In the course of their judgment their Lordships approve of the view expressed by the Board in the case already referred to, Batuk Nath v. Munni Del ('14) 1 A.I.R. 1914 P.C. 65 that:
There was no order of His Majesty in Council in dismissing the appeal nor was it necessary that any such order should be made in appeal. Under Rule 5 of the Order in Council of 13th June 1853 the appellant or his agent not having taken effectual steps for the prosecution of the appeal the appeal was dismissed without further order.
4. Their Lordships also in the course of their judgment approve of the decision in Gohur Bekpari v. Ram Krishna Saha : AIR1927Cal760 . In that case it was held that
where no substitution had been effected and an appeal was on that account declared to have abated limitation began to run from the date of the order declaring the appeal to have abated.
5. It is true that in that case the appellants obtained a rule to show cause why the abatement of the appeal in consequence of the death of the opposite party should not be set aside and his heirs substituted in his place. The rule was eventually discharged and thereafter the appeal was put up for hearing when the Court ordered that:
The sole respondent having died and no substitution having been made in his place, the appeal abates and is dismissed without costs as the respondent has not appeared.
6. In principle however I see no distinction between the facts of that case and the facts of the present case. In neither case were the merits of the dispute between the parties considered. In Gohur Bekpari v. Ram Krishna Saha : AIR1927Cal760 it is true the application for an order of abatement was made a matter of contest. In the present case the order of abatement was passed ex parte. It was none the less an order equally final. The important point is that in neither case did the Courts investigate the main dispute between the parties. It was contended by learned Counsel for the respondent that abatement was an automatic process. For this proposition learned Counsel relied upon the case in Churya v. Beneshwar : AIR1926All217 . It may be that abatement is an automatic process and the terms of Order 22, Rule 3 suggest that it is. On the other hand, where the Court entertains an application to have an appeal declared abated and passes an order upon that application it cannot be said that the Court has not dealt with the matter judicially and finally. Upon a consideration of the authorities referred and the arguments of counsel I am constrained to hold that the order of 2nd August 1934 by which this Court declared the Letters Patent appeal to have abated is a final order within the meaning of Article 182, Limitation Act, and that therefore limitation begins to run from] that date. In the result the appeal is allowed, the order of the learned District Judge is set aside and the order of the first Court is restored. The appellant is entitled to his costs in this appeal. The question raised in this appeal is one of importance and is not unattended with difficulty. I accordingly grant leave to appeal.
LETTERS PATENT APPEAL
7. We are satisfied that the judgment appealed against is perfectly correct. We accordingly dismiss this appeal with costs.