Chatterjea and Panton, JJ.
1. The question involved in this case is whether the application for execution of the decree is barred by limitation. The question arises in the following manner. The husband of the respondent Srimati Satyabala Debi, obtained a decree for possession of certain immovable properties on the 14th March, 1915. The defendants-appellants before us preferred an appeal against the said decree. Pending the appeal Purna Chandra Burman, the husband, died on the 20th February, 1917. There was then a contest between Satyabala, the widow of the deceased, and the father of Purna Chandra, as to who was the legal representative of the deceased. The father was substituted as the legal representative on the 3rd April, 1917, and the Court observed that as the question of heirship was not decided, she would not be affected by the order. On the next day, the father of the deceased filed a solenama giving up his right to the property in suit and consenting to the decree of the Court of first instance being set aside. That decree was accordingly set aside. Satyabala, the widow, was at that time and is still a minor. She applied for execution of the decree and an objection was taken on the ground that the application was barred by limitation. The Court of first instance decided the question in her favour.
2. On appeal, the District Judge did not consider the question of limitation. He held that as the widow was the legal representative of the deceased, it was obvious that she would not be affected by the decree passed between the parties.
3. The defendant judgment-debtor has appealed to this Court. There are conflicting affidavits as to whether the question of limitation was argued before the learned District Judge. It is unnecessary to decide that question; but assuming that it was raised, we do not think that the application is barred.
4. It has been contended on behalf of the appellant that as the widow of the deceased was not to be affected by the decision of the lower Appellate Court, the period of limitation should run from the date of the decree of the Court of first instance and as the husband was alive at that time, he should have applied for execution of that decree. It is urged that time commenced to run from the life-time of the husband, and the question of limitation therefore was not affected by his widow being a minor. But the decree obtained by the husband was appealed against. That appeal imperilled the whole decree and there was a risk of that decree being set aside on appeal. In these circumstances the husband was entitled to wait until the decision of the lower Appellate Court before applying for execution of the decree of the Court of first instance. The question of limitation discussed in the Court of first instance, as well as in this Court, is whether the period of limitation commenced to run from the date of the decree of the lower Appellate Court or from the date of the decree of the Court of first instance. It seems to us, however, that when the husband of the respondent died, the appeal abated by reason of a proper legal representative not being placed on the record. Up to that time, the period of limitation did not run against him, because, as we have already stated, he was entitled to wait until the decision of the lower Appellate Court. That being so, the limitation did not commence to run so long as he was alive; and upon his death the appeal abated and the widow was then entitled to execute the decree. As already stated she was then and is still a minor. In these circumstances, the application for execution was not barred.
5. The appeal is accordingly dismissed with costs, the hearing fee in this appeal being assessed at one gold mohur.
6. This judgment governs Appeal from Appellate Order No. 132 of 1923, which is also dismissed, but with out costs.