1. This is an appeal by one of the two dclendants against the final decree for sale passed by the Civil Judge, Class I, Raipur, in civil suit No. G-A of 1940.
2. The appellant Gyaniram for self and as guardian of his son Babulal, respondent No. 2 executed a simple mortgage bond, dated 2-1-1936, for Rs. 6,999 in favour of Chhotelal, since deceased, father of respondent No. 1, Gangabai. Interest agreed was 11 annas p.c. p.m. with yearly rests. The mortgage debt was said to have been taken for meeting the marriage expenses of Babulal who was then a minor. Chhotelal instituted the suit, out of which this appeal arises against Gyaniram and Babulal for recovery of Rs. 9,795-5-0 inclusive of interest. The suit was contested by Babulal who denied execution of the mortgage bond and legal necessity for the debt, A preliminary decree for sale for the full amount, with costs and future interest, was, however, passed against both the defendants on 29-11-1941, and the amount due, which was found to be Rs. 11,547-12-0 was made payable on or before 29-5-1942 with interest at 6 p.c. p.a. from the date of suit, namely, 15-2-1940, till 29-5-42 and thereafter at 4 p.c. p.a. till realisation.
3. Babulal preferred an appeal (First Appeal No. 28 of 1942) to this Court on 14-3-1942, against the preliminary decree. Chhotelal died on 22-7-43 and no application was made for substitution of his legal representatives within the period of limitation. On 8-4-1944, however, Babulal filed two applications, one for setting aside the abatement of the appeal and the other for substituting Gangabai in place of Chhotelal. The application for setting aside the abatement of the appeal was dismissed by this Court on 11-10-1944, and although no express order was passed on the other application, it obviously also stood dismissed along with the application for setting aside the abatement.
4. Babulal also filed an application on 1-9-1944 for substituting certain persons as the legal representatives on the strength of an alleged will of Chhotelal, which appointed them as executors of his property. Another application was also filed on 15-12-1944 for review of the order passed on 11-10-1944, Those applications were heard and dismissed on 26-10-1945. Still another application of Babulal, dated 3-1-1945, for substituting Gangabai in her capacity as an executor was also dismissed on 4-7-1945.
5. Thereafter Gangabai filed an application on 5-2-1947 for dismissal of the appeal on the ground of abatement. This application came up for hearing before Hemeon and Sen, JJ., who, on 24-3-1947, made the following order:
'Mr. T. B. Pendharkar, counsel for the appellant. Mr. M. Adhikari, counsel for the respondent. Heard application No. 696 dated 5-2-1947. The appeal is dismissed with costs as abated.'
Thus terminated the appeal of Babulal.
6. On 21-3-1946, Gangabai filed an application before the lower Court for substituting her in place of Chhotelal and for passing a final decree for sale. The application was opposed on two grounds namely (i) that it was barred by limitation, and (ii) that the applicant was not the legal representative of Chhotc-lal as he had appointed other persons as executors by his will. The lower Court held on the first point that the application was within time as limitation began to run under Article 181, First Schedule of the Indian Limitation Act, 1908, from 24-3-1947 when Babulal's appeal was finally disposed of. On the second point, it held that both as an heir and also as legatee of a life estate under the will, she was the legal representative of Chhotelal. By an order dated 11-3-1949, therefore, the lower Court directed the application to proceed.
7. As against the above order, Gyaniram preferred an appeal (Miscellaneous First Appeal No. 86 of 1949) before this Court. In the meantime the lower Court took up the proceedings pending before it, and on 8-4-1949 made the decree absolute. Thereafter, Gyaniram withdrew his miscellaneous appeal and preferred the present appeal against the final decree.
8. Nothing turns upon the withdrawal of the miscellaneous appeal as in the appeal against the final! decree, the appellant is entitled to contend all that] could be urged in the miscellaneous appeal. Only the question of limitation, however, was pressed before us in support of the present appeal. It was, in effect, contended that as the appeal of Babulal was really disposed of by abatement, which was automatic and not by order of the Court, limitation began to run under Article 181, First Schedule, of the Indian Limitation Act, from the date fixed in the preliminary decree for payment, namely 29-5-1942.
9. Article 181, First Schedule of the Indian Limitation Act is as under:--
'181 Application for whichno period of limitation is provided elsewhere in this Schedule or by Sec. 48of the Code of Civil Procedure, 1908.
When the right to applyaccrues.'
This corresponds with Article 178, Schedule II of the Indian Limitation Act of 1877, Article 182 of the present Act prescribes limitation for execution of a decree or order of any civil Court which is not provided for by Article 183 or by Section 48 of the Code of Civil Procedure. Clause (2) of this Article provides for the starting point of: limitation, in case there has been an appeal. The date from which the limitation starts under this clause is the date of the final decree or order of the appellate Court or the withdrawal of the appeal. This corresponds with Clause (2) of Article 179 of the old Act, except that, it did not provide for the date of withdrawal of the appeal as the starting point of limitation. Article 183 of the present Act provides for limitation for enforcing a judgment, decree or order, of any Court established by Royal Charter or an Order of the Supreme Court. This corresponds with Article 180 of the old Act.
10. Under Order 34, Rule 4 of the Code of Civil Procedure, a plaintiff is entitled to apply for a final decree for sale, if the defendant commits default in paying the decretal amount within the period specified in the preliminary decree. There is, therefore, no doubt that the plaintiff is not precluded from making an application for a final decree on account of the pendency of an appeal. See Sat Parkash v. Bahal Rai, ILR 53 All 283: (AIR 1931 All 386) (FB) (A).
11. That does not, however, conclude the matter. Under the 3rd clause of Article 181 of the Indian Limitation Act, what is essential is to ascertain the date on which the right to apply accrued. There would be nothing incongruous if this date is not the same in all cases. When the right to apply accrues, would, therefore, depend upon the particular facts of each case.
12. In Batuk Math v. Mt. Munni Dei, ILR 36 All 284: (AIR 1914 PC 65) (B), their Lordships of the Privy Council held that where an appeal is dismissed for want of prosecution, it is not the final decree of an appellate Court within the meaning of Article 179 of the Indian Limitation Act of 1877. That was, however, a case of dismissal under Rule V of the Order in Council under which the dismissal was automatic and was not necessary to be confirmed by the Court. Regarding the dismissal of the appeal, their Lordships observed:--
'There was, however, no order of His Majesty in Council dismissing the appeal, nor was it necessary that any such order should be made in the appeal. Under Rule V of the Order in Council of the 13th of June 1853, the appellant or his agent not having taken effectual steps for the prosecution of the appeal, the appeal stood dismissed without further order.'
13. The same view was held by the Judicial Committee in Abdul Majid v. Jawahir Lal, ILR 36 All 350: (AIR 1914 PC 66) (C), which was also a case where the appeal was dismissed for want of prosecution, although after admission, Lord Moulton, delivering the judgment in the case, observed as below:--
'The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit & could in no sense be regarded as an order accepting 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 the same position as if he had not appealed at all.'
14. The matter again came up before their Lordships of the Privy Council in Sachindra Nath Roy v. Maharaj Bahadur Singh, ILR 49 Cal 203: (AIR 1922 PC 187) (D). That was also a case where the appeal was dismissed for want of prosecution, in which the previous decisions of the Judicial Committee referred to above were followed.
15. All these cases, however, arose under Article 179 of the old Act which corresponds with Article 182 of the present Act. They were considered by the Judicial Committee in Abdulla Asghar Ali v. Ganesh Das Vig, AIR 1933 PC 68 (E), in which a distinction was drawn between an appeal in which the dismissal was not due to any judicial decision and one in which it was automatic. That was a case in which the question as to whether the appeal had abated was judicially determined and therefore, the date of that decision was held to be the starting point of limitation under Clause (2) of Article 182 of the present Act.
16. Their Lordships, however, approved of the decision of the Calcutta High Court in Gohur Bepari v. Ram Krishna Shaba, 32 Cal WN 387: AIR 1927. Cal 760) (F). That was a case in which there was no question as regards the factum of abatement but the question whether abatement should be set aside was judicially determined. Therefore, although in the case decided by the Judicial Committee the question of abatement itself was judicially considered and decided, it would stand on the same footing as the one in which only a matter incidental to abatement was the subject-matter of the Court's decision.
17. This question was considered at length in Murlidhar v. Mahabir Singh, ILR 1941 All 658: (AIR 1941 All 371) (G). In that case, there was no contest as regards the question of abatement, and all that the Court had done was to order dismissal of the appeal with costs on account of abatement. On the question whether such an order would be the starting point of limitation under Article 182 (2) of the Indian Limitation Act, Thom, C. J., on comparison of the facts of the case before him and those of Gohur Bepari v. Ham Krishna Shaba (F) (cited supra), observed as below:--
''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 Bepari v. Ham Krishna Shaba (F), 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 nonetheless an order equally final. The important point is that in neither case did the Courts investigate the main dispute between the parties.'
In repelling the contention that abatement being an automatic process, an order declaring the appeal to have abated, cannot be deemed to be a final decree or order in appeal, the Chief Justice observed as below;--
'It was contended by learned counsel for the respondent that abatement was an automatic process. For this proposition learned counsel relied upon the case of Churya v. Baneshwar, ILR 48 All 334: (AIR 1926 All 217) (FB) (H). It may be that abatement is an automatic process and the terms of Order XXII, 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.''
The decision in this case was followed in Ajudhia Prasad v. U. P. Government, ILR 1947 All 191: (AIR 1947 All 390) (I).
18. Similar view has been held by the Madras High Court in Jugisti Mahapatro v. Magata Patro, ILR 56 Mad 520: (AIR 1933 Mad 442) (J), where the appeal was dismissed with costs on withdrawal, and an applieation for a final decree was made within 3 years from the date of the order. Their Lordships considered in that ease the scope of the observations of the Judicial Committee in Batuk Nath v. Muni Dei (B) and Abdul Majid v. Jawahir Lal (G) (cited supra), arid held that they did not mean that unless there was a judicial determination of an appeal on merits, there could be no final decree or order within the meaning of Clause (2) of Article 179 of the old Indian Limitation Act. , Accordingly, the view held by the Full Bench of the Madras High Court in Ramanuja Pe-riya Jeeyangar v. Lakshmi Doss, ILR 30 Mad 1 (K), that even where an appeal is withdrawn arid the Court merely passes a consequential order of dismissal of the appeal, the date of the Court's order is the date of the starting point of limitation.
19. In Aiyappari Pillai v. Kesavalu, AIR 1953 Trav-C 545 (FB) (L), it was observed that even in a case of abatement of an appeal, it is neither unnecessary nor superfluous for the Court to pass final orders disposing of the appeal and to remove the appeal from the file an order was held in that case to be covered by Art, 182 (2) of the Indian Limitation Act.
20. It would thus appear that even in case of automatic abatement of an appeal, the date when the appeal is formally disposed of by the Court, is the date from which limitation would begin to run under Art, 182 (2) of the Indian Limitation Act. There appears no reason why the same date should not be treated as the starting point of limitation under Article 181. An appeal is in effect a re-hearing of all the matters in controversy in the suit. See Laehmcshwar Prasad v. Kcshwar Lal, ILR 20 Pat 429: (AIR 1941 FC 5) (M). The result is that when an appeal is filed, the suit is re-opened and becomes the subject of review by the appellate Court. In this view, it cannot be held that Order 34, Rule 4 of the Code of Civil Procedure is obligatory on the judgment-creditor. It is only an enabling provision which may be availed of by him at his pleasure. He need not, therefore, do so and may wait for the final decision of the suit in appeal. If he docs so, the right to apply for a final decree would accrue on the termination of the appeal by an order of the Court, and it is immaterial whether the appeal is disposed of on merits or otherwise.
21. In the present case, the question whether the abatement should be set aside was disposed of on 11-10-1944. That was the earliest date when this question had come up for decision. Even from that date, the application for making the decree final, which was filed on 21-3-1946, is within limitation.
22. The appeal, accordingly, fails and is dismissed with costs.