SHAH SANKAL CHAND Vs. PUNAMCHAND

JUDGEMENT

(1.) This is an appeal by shah sankal Chand against the judgment of the Civil Judge of Sirohi in an execution matter.

(2.) Shah Sankal Chand had brought a suit against the respondent Shah Punamchana and obtained an ex parte decree on 20-2-1948. This decree was put in execution on 31-5-1951. The judgment-debtor respondent was given notice under Order 21, Rule 22, and on appearance took the plea that the application for execution was barred by limitation. This plea was accepted by the executing Court and the application for execution was dismissed. Hence this appeal.

(3.) The case of the decree-holder appellant was that limitation was saved under Article 182 in view of the provisions in Clause 2 of column 3 of that article. It appears that, after the ex parte decree had been passed, there was an application by the defendant for setting aside the ex parte decree. This application was dismissed. Thereupon, there was an appeal from the order dismissing the application for setting aside the ex parte decree, and this appeal was dismissed on 22-11-1950. The case of the appellant is that the period of limitation should start from 22-11-1950, when the appeal from the order refusing to set aside the ex parte decree was dismissed, and not from 20-2-1948. This depends upon whether Clause 2 in the third column of Article 182 includes also an appeal from collateral proceedings, or whether it only includes an appeal from the decree or order sought to be executed. Clause 2 is in these words "(where there has been an appeal) the date of the final decree or order of the Appellate Court, or the withdrawal of the appeal." It is contended on behalf of the appellant that the word 'appeal' here includes any kind of appeal relating to the proceedings in which the decree arose. On the other hand, the respondent contends that it means an appeal from the decree or final order which is put in execution.