(1.) This is a decree-holder's appeal in execution proceedings. The decree-holder Mahabir Singh instituted a suit for ejectment and possession against one Khub Chand. On 30 June 1930 the suit was dismissed by the Munsif of Bulandshahr. The plaintiff appealed and on 17 August 1931 the appeal was allowed. The defendant thereupon appealed to the High Court. His appeal was dismissed on 25 February 1932. He obtained leave to appeal against this decision and filed a Letters Patent appeal. While this appeal was pending Khub Chand died on 5 April 1934. On 2 August, 1934 the High Court declared that in consequence of Khub Chand's death, the Letters Patent appeal had abated and further that the plaintiff- respondent Mahabir Singh was entitled to his costs of the Letters Patent appeal from the assets of the deceased appellant. The plaintiff appellant Mahabir Singh on 20 April 1936 instituted execution proceedings in respect of the subject-matter of the suit, as distinct from the costs awarded to him in the Letters Patent appeal, against the legal representatives of the deceased Khub Chand. These execution proceedings were resisted in the Munsif's Court on the ground that they were barred by limitation. The learned Munsif dismissed the objection to the proceedings. An appeal from his decision was allowed by the learned District Judge who held that the only order of a final character which can be executed in respect of the appeal is dated 25 February 1932. In respect of it the execution proceedings which started on 20 May 1936 being beyond three years are barred by limitation.
(2.) The decree-holder Mahabir Singh appeals from the decision of the learned District Judge. The short point for consideration is whether the order of the High Court of 2 August, 1934, declaring that the Letters Patent appeal had abated in consequence of Khub Chand's death and awarding the plaintiff Mahabir Singh costs of that appeal, is or is not a final order within the meaning of Art. 182, Limitation Act. Learned Counsel for the appellant maintained that when the High Court declared that the Letters Patent appeal had abated it finally and judicially disposed of the dispute between the parties and that therefore limitation began to run from 2 August, 1934 and not from 25 February 1932, the date of the High Court's order in dismissing the judgment-debtor's second appeal. In support of this contention learned Counsel relied upon the decision in Mohammad Razi v. Karbalai Bibi ( 10) 32 All. 136. In that case a Bench of this Court held that an order declaring an appeal to have abated is in effect an affirmation of the decree of the Court below and limitation only begins to run against the decree-holder from the date of such order and not from the date of the decree under appeal.
(3.) Learned Counsel further relied on certain observations in the judgment of the case in Fazl-ul-Rahman V/s. Shah Mohammad Khan ( 08) 30 All. 385. It was contended, on the other hand, for the respondents that the order declaring the Letters Patent appeal to have abated was not a final order disposing of the dispute between the parties and that limitation began to run from the date of the dismissal of the second appeal by the High Court. In support of this contention reliance was placed upon two decisions of the Privy Council in Batuk Nath V/s. Munni Del ( 14) 1 A.I.R. 1914 P.C. 65 and Abdul Majid V/s. Jawahir Lal ( 14)1 A.I.R. 1914 P.C. 66. In both cases the Board held that the dismissal of an appeal which had been preferred in the Privy Council for want of prosecution is not a final decree of an appellate Court within the meaning of Art. 179, Clause (2) of Schedule 2, Limitation Act of 1877 which corresponds to Art. 182 of the present Limitation Act of 1908. Learned Counsel argued that an order dismissing an appeal for want of prosecution was on all fours with an order declaring an appeal to have abated in respect that the heirs of the deceased party had not been brought upon the record. In my opinion there is good deal of substance in this contention. In neither case does the Court investigate the merits of the dispute between the parties. On the other hand it cannot be said that in declaring an appeal to have abated the Court does not act judicially and finally dispose of the appeal. The effect of an order of dismissal for want of prosecution by the Privy Council was considered by the Privy Council in Abdulla Asghar Ali V/s. Ganesh Das Vig . In the course of their judgment their Lordships approve of the view expressed by the Board in the case already referred to, Batuk Nath V/s. Munni Del ( 14) 1 A.I.R. 1914 P.C. 65 that: There was no order of His Majesty in Council in dismissing the appeal nor was it necessary that any such order should be made in appeal. Under Rule 5 of the Order in Council of 13 June 1853 the appellant or his agent not having taken effectual steps for the prosecution of the appeal the appeal was dismissed without further order.