KOCHU VARKEY Vs. SANKARA PANICKER

JUDGEMENT

(1.) The only question that arises for consideration is this second appeal is whether the respondent's application for execution of the decree in O.S. No. 403 of 1117 of the District Munsiff's Court, Ernakulam, is barred by limitation or not. The answer depends entirely on the reply to the further question as to whether the time available should be calculated from the date of the dismissal of the second appeal from the said decree, S.A. 103 of 1121, on 14.11.1121 or whether it has to be calculated from the date of the decree of the court of first appeal namely, 26.1.1121. If 14.11.1121 forms the material date, it is agreed, that the present execution application is not barred by limitation and that the second appeal will have to be dismissed.

(2.) The second appeal No. 103 of 1121, was dismissed on 14.11.1121 without issuing notice on the ground that it involved only a concurrent finding of the fact and the contention of the appellant before me is that the date of such a dismissal cannot be taken into account for the purpose of calculating the period of limitation.

(3.) An identical question came up for decision in 13 Cochin 218 and it was held that even where a second appeal is dismissed under S.535 of the Code of Civil Procedure the date of dismissal is the date of "the final decree or order" of the appellate court for the purpose of Art.163 of the Limitation Act and that an application for execution presented within three years from the date of such a dismissal would not be barred even though on the date of the application more than three years had elapsed from the date of the decree of the first appellate court. That decision was approved in 32 Cochin 536 and summarised as follows: