PEER AMMAL Vs. NSNALLUSAMI PILLAI

JUDGEMENT

(1.) The question is whether this appeal was presented in time. The material dates are as follows: The appeal is from a preliminary decree on a mortgage passed ex parte by the Subordinate Judge of Madura in O.S. No. 128 of 1926 first on 8th August, 1928. The appellants, (defendants 1 and 4) applied under Order 9, Rule 13 on 9 August, 1928, to set aside the ex parte decree and the Court set it aside on 12 October, 1928. Meanwhile, the appellants had also on 9 August, 1928, applied for copies of the judgment and decree and they were ready for delivery on 27 September, 1928, so that, had the appellants wanted to appeal, they had out of the 90 days available about 1 1/2 months more after 12 October, 1928. As the decree was set aside by the Sub-Judge himself, no appeal was preferred. But the plaintiff (respondent) applied in C.R.P. No. 116 of 1929 to this Court to revise the order of the Sub-Judge setting aside the ex parte decree and this Court on 22nd November, 1929, set aside that order thus restoring the preliminary decree to effect. This appeal was presented on 6th January, 1930.

(2.) The provision of the Limitation Act applicable is Art. 156 which prescribes a period of 90 days from the date of the decree or order appealed from. The appellants contend that the date of this decree for the purpose of appeal must be taken as 22nd November, 1929, when this Court by its order in C.R.P. No, 116 of 1929 restored force and effect, including appealability, to the original decree which it had lost by its being set aside. The respondent contends that the date of the decree is 8 August, 1928, the date when it was originally passed, and that its subsequent vicissitudes have no effect on the period of appealability and that the only course open to the appellants is to induce this Court to excuse the delay under Section 5 of the Limitation Act. No application under Section 5 being now before us, we have to decide between the two above contentions as to the starting point of limitation.

(3.) No decision exactly in point has been brought to our notice. But we entertain little doubt that the appellants contention must be accepted. It is not only in consonance with the principle underlying the law of limitation that suits, appeals and other legal proceedings are possible only when there is some cause of action, or ground of appeal or other grievance on which the plaintiff, appellant or applicant has a right to come to Court and ask for relief, but the opposite view would lead to the absurd result that an appellant's right to appeal and the decree- holder's right to execute the decree are both barred before the decree to be appealed from or to be executed came into legal being.