Krishnan Pandalai, J.
1. The question is whether this appeal was presented in time. The material dates are as follows:
The appeal is from a preliminary decree on a mortgage passed ex parte by the Subordinate Judge of Madura in O.S. No. 128 of 1926 first on 8th August, 1928. The appellants, (defendants 1 and 4) applied under Order 9, Rule 13 on 9th August, 1928, to set aside the ex parte decree and the Court set it aside on 12th October, 1928. Meanwhile, the appellants had also on 9th August, 1928, applied for copies of the judgment and decree and they were ready for delivery on 27th September, 1928, so that, had the appellants wanted to appeal, they had out of the 90 days available about 1 1/2 months more after 12th October, 1928. As the decree was set aside by the Sub-Judge himself, no appeal was preferred. But the plaintiff (respondent) applied in C.R.P. No. 116 of 1929 to this Court to revise the order of the Sub-Judge setting aside the ex parte decree and this Court on 22nd November, 1929, set aside that order thus restoring the preliminary decree to effect. This appeal was presented on 6th January, 1930.
2. The provision of the Limitation Act applicable is Article 156 which prescribes a period of 90 days from the date of the decree or order appealed from. The appellants contend that the date of this decree for the purpose of appeal must be taken as 22nd November, 1929, when this Court by its order in C.R.P. No, 116 of 1929 restored force and effect, including appealability, to the original decree which it had lost by its being set aside. The respondent contends that the date of the decree is 8th August, 1928, the date when it was originally passed, and that its subsequent vicissitudes have no effect on the period of appealability and that the only course open to the appellants is to induce this Court to excuse the delay under Section 5 of the Limitation Act. No application under Section 5 being now before us, we have to decide between the two above contentions as to the starting point of limitation.
3. No decision exactly in point has been brought to our notice. But we entertain little doubt that the appellants' contention must be accepted. It is not only in consonance with the principle underlying the law of limitation that suits, appeals and other legal proceedings are possible only when there is some cause of action, or ground of appeal or other grievance on which the plaintiff, appellant or applicant has a right to come to Court and ask for relief, but the opposite view would lead to the absurd result that an appellant's right to appeal and the decree-holder's right to execute the decree are both barred before the decree to be appealed from or to be executed came into legal being.
4. In Muthu Korakkai Chetty v. Modar Ammal I.L.R. (1919) M. 185 : 38 M.L.J. 1, a Bench of live Judges dealt with the question whether for an application for delivery of properties sold in Court auction, limitation ran from the date of an ex parte confirmation of the sale (26th April, 1913) or from the termination of proceedings taken by the opposite party to set aside that confirmation (25th June, 1915). It was held by four of the learned Judges that the latter date was the terminus a quo although the result of the proceedings in respect of the properties subsequently sought to be recovered was that the order of 26th April, 1913, was confirmed by that of 25th June, 1915. The other learned Judge contented himself with answering the question put in the negative as it was put in the form whether the cause of action for application was suspended during the pendency of the proceedings. The decisions of the Judicial Committee bearing on this question, an apparent conflict between which was the cause of the reference, to a Full Bench, were so fully gone into in that case, that it is needless to refer at length to them again. To. understand the ground of decision of the Court it is sufficient to refer to the citations from the Privy Council decisions in Baijnath Saliai v. Ranigut Singh (1890) L.R. 23 IndAp 45 : I.L.R. 23 C. 775 (P.C.) and Basso. Kuar v. Dhum Singh . In the former case which was one of a revenue sale by the Collector in 1882 confirmed by the Commissioner in 1884 and set aside by the Board of Revenue in 1884 and confirmed by the. Board in review in 1886 their Lordships said that for the, purpose of limitation there was no final or definitive confirmation of the sale till the final order on review by the Revenue Board in 1886. In Basso Knar v. Dhum Singh it was held that money due on an account stated which would, as such, have been barred in three years from the statement became for purposes of limitation a debt of a new character when, it having been retained by the debtor as part of the consideration for a proposed sale of land, that arrangement failed, the sale not being specifically enforceable and so declared by the decree between the parties. Their Lordships said as to the defence that the suit for the money should have been brought while the arrangement for setting it off against the purchase-money was still in force that:
It would be an inconvenient state of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property if he does not. And it would be a lamentable state of the law if it were found that a debtor, who for years had been insisting that his creditor shall take payment in a particular mode, can, When it is decided that he cannot enforce that mode, turn round and say that the lapse of time has relieved him from paying at all.
5. Reading the judgments pronounced in Muthu Korakkai Chatty v. Madar Animal I.L.R. (1919) M. 185 : 38 M.L.J. 1, it becomes clear that while on the one hand no 'suspension', in the proper sense, of a period of limitation which has begun to run is permissible except as provided in Section 14 etc., of the Limitation Act, the Courts will place a liberal or in the language of Oldfield, J., an accurate construction on the somewhat loosely expressed words in column 3 of the first schedule which prescribe the starting point of the period of limitation by not requiring parties to start legal proceedings in circumstances when it would be futile for them to do so. As Seshagiri Aiyar, J., put it:
Subject to the exemptions, exclusion, mode of computation and the excusing of delay, etc., which are provided in the Limitation Act, the language of the third column of the first schedule should be so interpreted as to carry out the true intention of the legislature, that is to say, by dating the cause of action from a date when the remedy is available to the party(p. 213).
6. The 'respondent's advocate relied on Ammathayi Animal v. Siyarama Pillai (1924) 48 M.L.J. 74 and the Privy Council decision referred to in it, Mani Singh Mandhala v. Naivab Bahadur of Murshidabad . In that case the plaintiff had obtained a preliminary decree on a hypothecation under which the time for payment of the mortgage money was fixed for 6th March, 1917. Meanwhile, the mortgagor's (defendant's) husband brought a suit in 1916 against the mortgagor and mortgagee for a declaration that the mortgaged property belonged to himself and that the mortgage was therefore not binding on the property. That suit was decreed in the first Court in favour of the husband on 26th April, 1917, and by the first Appellate Court, but was dismissed in second 'appeal by the High Court on 28th April, 1920. The plaintiff applied for a final decree on 10th September, 1920, more than three years after the date fixed for payment but less than three years after the defendant's title to the mortgaged property was affirmed in the second appeal. The argument put forward for the plaintiff in this Court was that he had lost the right to apply for a final decree by the decisions of the first Court and the first Appellate Court in the husband's suit, that the property belonged to him and that it revived on the decision of the second appeal that it belonged' to the mortgagor. The Court did not accept this on the ground that the Court when it sells property in execution of a mortgage decree does not guarantee the title of the judgment-debtor as against strangers and that Article 181 which prescribes the starting point of limitation for such an application as the time when the right to apply accrues, does not say (mean) that the right to apply accrues only when the mortgagor's title as against strangers is clear. Therefore it was held that the right to apply for a final decree accrued on the 'date fixed for payment and that as no ground of suspension of limitation could be urged under the Limitation Act and no other ground of suspension was available according to Mani Singh Mandhata v. Nawab Bahadur of Murshidabad , the application was barred.
7. This decision has in our opinion no application to this case. It merely decided that under Article 181 the right to apply for a final decree in a mortgage suit accrues not when the disputes between the decree-holder and strangers to the decree about the title to the mortgaged property terminate and the mortgagor's title as against such strangers is established but from the date fixed in the decree for payment of the debt. In this case we have to deal with a different article, namely 156 and the question is what is the meaning to. be given to the words 'date of the decree or order appealed from' when the decree has been set aside by the Court which passed it within the appealable period and, therefore, no appeal is thereafter competent to the defendant and the decree is afterwards restored by a higher tribunal. In our opinion the case clearly falls within the class of cases when a fresh starting point of limitation for appealing has necessarily to be found. The opposite view would lead to the absurd result, that the defendant would be deprived of the right of appeal because he did not appeal against a decree which had ceased to exist and against which, therefore, he could not have appealed after it was set aside. But it was suggested that he ought to have appealed before the decree was set aside under Order 9, Rule 13. Assuming he had done so, as soon as the decree was set aside under Order 9, Rule 13, the appeal would become infructuous and would necessarily have to be dropped and the position after the decree was restored in revision by the High Court would be the same as if he had not appealed at all. It is not to be supposed that the appeal should be kept pending in contemplation of the double uncertainty that the plaintiff might take the order setting aside the decree to the High Court in revision and that this Court might interfere in revision. If we look at the matter from the point of view of the decree-holder, it becomes still more absurd if we have to suppose that his right to execute the decree under Article 182 is in the circumstances of the present case to begin from the date of the first decree which was subsequently set aside and later restored. If between the date of the original decree and the restoration in revision a period of more than three years has expired, it would follow that as there is no allowance for the intervening period according to the Actor any other clauses of Article 182, his application for execution would be barred before he succeeded in getting his decree restored. A construction which leads to such results could not have been contemplated by the Legislature. We think, therefore, that the date of the decree appealed from must be taken as the date when the decree was restored in revision by this Court. On this footing, we hold that the appeal was presented in time and it will be admitted.