1. The point for decision in this appeal is one of limitation. The plaintiff applied for a final decree in a redemption suit. The preliminary decree was obtained on 29th June, 1918, the application for final decree was made on 22nd October, 1923, more than three years after the preliminary decree. The preliminary decree, however, was taken upon first appeal and second appeal. The first appeal was disposed of on 29th November, 1919 and the second appeal on 8th February, 1922. The application is, therefore, beyond three years of the first appeal decree and within three years of the second appeal decree. The original court has held that it was in time, the Lower Appellate Court that it was not, and the plaintiff appeals.
2. The Article applicable is Article 181 and the terminus a quo is the date when the right to apply accrued. The plaintiff's contention is that the preliminary decree now is the High Court's decree in second appeal and that his right to apply accrued only on the date of that. The respondent contends that as the High Court decree merely dismissed the second appeal the right to apply accrued on the date of the first appeal decree. All that we know about the High Court proceedings is its judgment which runs, 'No question of law. The second appeal is dismissed with costs.' The fact that it was dismissed with costs indicates that the second appeal was admitted and notice given to the other side, and that the other side appeared and was ready to argue the case if called upon.
3. It is contended by the respondent that, if the High Court had gone into the merits of the appeal and dismissed it, the right to apply would accrue only on the date of the High Court decree. But it is contended that the High Court could not have gone into the merits because it merely says 'no question of law', and that as it has held that there was no question of law it held in effect that the second appeal was not competent, since a second appeal can only be maintained on a question of law. But the fact that the appeal was admitted as an arguable appeal indicates to my mind that it was entertained as competent. The competency of an appeal does not depend on the final decision in the appeal. If the High Court does not dismiss it in limine, but thinks there is an arguable question of law, then the appeal is competent, and it is because it is competent that notice is given to the other side and the appeal posted for hearing both sides. The decision of the High Court was, therefore, a decision after hearing the merits of the case discussed on both sides, and its, decree, therefore, superseded the decree of the Lower Appellate Court.
4. The same result is arrived at from another point of view. It may be that, when an appeal is summarily dismissed as time-barred or because of default of appearance or want of prosecution or some similar reason, the proper order is one of dismissal, pure and simple, and that such an order or decree, whichever it be, would not supersede the decree of the Lower Appellate Court: This is a question the answer to which either way will raise difficulties which I need not consider here; for I am clear that, when notice has been given and the appeal argued, the decree of dismissal, even if the word 'dismissed' is used, is really a decree of confirmation, if indeed, considering that costs is awarded in addition to the Lower Appellate Court's decree, one may not even say it is a decree of modification. The rules applicable are Rules 30 to 32 of Order 41, and the proper decree in such a case is one confirming, varying or reversing the decree appealed from; and in such a case there is and must be a new decree containing the costs ordered by the High Court. The old decree has been confirmed and superadded to or modified; it does not really matter by which term we describe it. The High Court decree does supersede the decree appealed from and becomes final preliminary decree, if such a phrase be permitted.
5. The general principle laid down by the Privy Council in Joivad Hussain v. Gendan Singh and Fitsholmes v. Bank of Upper India (1926) L.R. 54 IndAp 52 : I.L.R. Lah. 253 : 52 M.L.J. 366 (P.C.) is not altered because the High Court has only limited powers in hearing a second appeal. The principle applies to an appeal which has been heard in the sense of having been admitted and the other side given notice to appear and argue. That principle has been affirmed in this Court from the Full Bench case in Pichuvayyangar v. Seshayyangar I.L.R.(1894) M. 214 : 5 M.L.J. 39 (F.B.) onwards. See Munuswami Naidu v. Munuswami Reddi I.L.R.(1898) M. 293 and Venkayya v. Sathiraju : AIR1921Mad514(1) . See also Kailash Chandra Bose v. Girija Sunduri Debi I.L.R.(1912) C. 925. The respondent relied on the Privy Council case in Juscurn Bold v. Pirthichand Lal Choudhury (1918) L.R. 46 LA. 52 : I.L.R.1918 C. 670 : 36 M.L.J. 557 (P.C.) but there the question was not whether the appeal decree has superseded the original decree but when was a particular sale reversed, as has been explained by this Court in Venkayya v. Sathiraju : AIR1921Mad514(1) . A similar case is relied on in Hari Mohan v. Parameshwar Shau : AIR1928Cal646 , where again the question was not one of limitation, but when a particular right to restitution accrued. I am not shown any authority which lays down that, when the High Court has admitted and heard an appeal argued, its decree, even though it be a decree of dismissal, does not supersede the decree appealed from. I hold that the District Munsif's order is right. I allow this appeal and reverse the District Munsif's decree with costs here and in the Lower Appellate Court.