J EPHRAIM FERNANDEZ Vs. MADI PILLAY SIVAKAMY PILLAI

JUDGEMENT

(1.) THE question for decision sounds simple. It is this:

(2.) THE facts are these: a suit for redemption brought by the predecessor of the present respondents was dismissed by the trial Court on the 20th September 1953. The plaintiff appealed, and, by an order dated the 13th May 1957, the appellate Court remanded the suit. On remand, the trial Court decreed the suit ex parte on the 23rd August 1957. Three days later, on the 26th August 1957, the defendant (the predecessor of the present judgment-debtors) appealed to this Court from the order of remand, and this appeal was dismissed on the 23rd August 1960. On the 7th October 1960, the present respondents brought their application for execution of the decree passed on remand. If the starting point for limitation is the date of the decree, i. e. , the 23rd August 1957, the application is out of time, the decree not having been registered. But, it the starting point is the date of the dismissal of the appeal, i. e. , the 23rd August 1960, it is in time. The first Court held that the relevant date was the date of the decree and dismissed the execution application. On appeal, the lower appellate Court took the contrary view, namely, that the relevant date was the date of the dismissal of the appeal and that the execution application was therefore in time. Accordingly it directed that execution should proceed. Against that, one of the judgment-debtors has come up with this second appeal.

(3.) I might mention that the original defendant had filed an application under Order ix, Rule 13 of the Code for setting aside the ex parte decree against him. That application was dismissed and an appeal he filed from the dismissal was dismissed on 20th February 1959. It is, however, not necessary to consider whether this could furnish a fresh starting point for limitation since the respondent decree-holders have a much stronger case based on the appeal against the order of remand and have not contended that, if they fail in that case, they can stand upon the appeal against the dismissal of the application under Order IX, Rule 13.