THANDAVAROYA GRAMANI Vs. ARUMUGHA MUDALI AND ANR.

JUDGEMENT

(1.) THE only point for consideration in this appeal is whether E.A. No. 1102 of 1942 on the file of the Chingleput Subordinate Judge's Court out of which this appeal arises was barred by limitation or not. Both the lower Courts have found that it was not barred by limitation. The decree was passed on 11th November, 1938. The defendant was ex parte. This petition was filed on 25th July, 1942. The final order on the previous E.P. No. 287 of 1939 was passed on 5th July, 1939. But it was alleged for the decree -holder that the defendant made an application, I.A. No. 384 of 1939, to set aside the ex parte decree in the suit, and that an appeal was preferred against the order dismissing that application and that appeal was dismissed as incompetent and therefore the period of limitation commenced on 5th August, 1940, the date on which the appeal against the petition to set aside the ex parte decree was disposed of. It is contended for the appellant that there was no final order by an appellate Court as the appeal itself was not maintainable and consequently the date of the dismissal of the appeal cannot furnish a starting point of limitation. That an appeal was filed is a fact and that it was filed in the Court to which appeals from the Court which passed the original decree would lie ordinarily under the Civil Courts, Act is not disputed. But what is stated is that against the order in such proceedings of a small cause nature no appeal is provided and consequently the order in the appeal would not furnish a starting point of limitation. It is not disputed that if an appeal lay and the order had been passed that it would furnish a starting point of limitation in this case, but since it is stated that the appeal was incompetent any order passed thereon cannot be said to be an order as contemplated in Article 182(2) of the Limitation Act which runs thus:

(2.) THE interpretation of this Article had to be considered by the Privy Council in Nagendranath Dey v. Sureshchandra Dey, (1932) 63 M.L.J. 329 :, L.R. 59 IndAp 283 :, I.L.R. 60 Cal 1 and this is what was observed by their Lordships: