in Council, dated 15th June. 1953: Rule V:- That a certain time be fixed within which it shall be the duty of the appellant or his agent to make such application for the printing of the transcript, and that such time be within the space of six calendar months from the arrival of the transcript and the registration thereof in all matters brought by appeal from Her Majesty's colonies and plantations east of the Cape of Good Hope, or from the territories of the East India Company, and within the space of three months in all matters brought by appeal from any other part of Her Majesty's dominion abroad, and that in default of the appellant or his agent taking effectual steps for the prosecution of the appeal within such time or times respectively the appeal shall stand dismissed without further order'.'
(27) The rule shows that the dismissal for want of prosecution under the circumstances prevailing in that case was automatic without an order of the court. thereforee, there was no order dismissing it. This rule of the Judicial Committee has itself been altered in 1924 and thereafter there is no case of dismissal of the appeal by the Privy Council for want of prosecution without an order of the court. Moreover, in Abdul Majid's case the Privy Council was considering as to whether the decree that had to be executed was the decree of the High Court appealed from or the order in Council of the Privy Council. There is no doubt that in case the appeal in the Privy Council was dismissed for non-prosecution the decree that was to be executed was of the High Court appealed from. (In the instant cases, the decree that has to be executed is of the High Court and not of the Supreme Court.) So far as the Rules of the Supreme Court are concerned, the Rules mentioned -above provide for an express order of the court dismissing the appeal for non-prosecution. So, Abdul Majid's case (supra) has no application to the facts of the instant cases.
(28) Mr. Bishamber Dayal, learned counsel for the respondent has submitted that the Supreme Court in M.M. Barot vs. Patel Manibai Gokalbhai, : 2SCR436 has held that an application for restitution filed under section 144 of the Code of Civil Procedure is really an application for execution arising upon the variation of the decree by the court of appeal and is governed by Article 182 and not article 181 and it is not an independent application. As such in obtaining restitution in the instant cases, the decree-holder is trying to execute the decree of the High Court which had been passed on appeal and the limitation for it is governed by Article 182 of the Limitation Act. Mr. Bishamber Dayal points out that if the decree or order of the Supreme Court were to be executed, then the question raised in these cases of the applicability of Article 182 would not arise, but the limitation would be governed by Article 183 of the Limitation Act, 1908, which prescribes 12 years period of limitation. To obtain restitution in execution of the appellate decree of the High Court, Article 182, thereforee, applies. Clause I gives the starting point of limitation, as the date of the decree which in the instant cases, will be August, 1957. The second clause of the same Article prescribes the extended period of limitation. The party is trying to execute the decree of the High Court, but the starting point of the limitation for the purpose is the date of the final order of the court of appeal. In this view of the matter, it is not at all material as to whether the Supreme Court had dismissed the appeals for non-prosecution by a judicial order or otherwise. The only important point for consideration, in applying clause 2 of the said Article is whether the appeals in the Supreme Court had been terminated and whether a final order, as distinct from an interlocutory order, had been passed in its respect. Both these are fully satisfied in the present cases and the application of the respondent would, thereforee, be within lime.
(29) The decision of the Privy Council in Abdul Majid's case (supra) has been distinguished by the Privy Council itself in its decision reported Nagendra Nath Dey v. Suresh Chandra Dey , and Abdulla Asgar Ali v. Gan,esh Das . It has also been distinguished in various decisions of the High Courts, namely, P. Ram Kumar v. Chaube Rudra Dutt : AIR1951All493 , Smt. Rabia Bibi v. Smt. Mohammadi Bibi, : AIR1960All515 , Maharaja Pateshwari Prasad Singh v. Aditya Prasad : AIR1963All398 , and Kirpal Shah Sant Singh v. Shri Harkishan Das Narsingh Das .
(30) As a result, I find that the second contention of Mr. Anand has no force. Both his contentions are accordingly rejected and the appeals are dismissed and the order of the lower appellate court affirming the order of the execution court is confirmed. The appellants will pay costs of these appeals.