JUDGMENT Sir Francis W. Maclean, K.C.I.E., C.J. - In my opinion the view taken by the referring Court upon the point which has been referred is the right one. I have listened with attention to the argument which has been submitted to us by the Appellant, but that argument has not satisfied me that that view is incorrect. I was a party to the reference and I have given my reasons for the conclusion at which I arrived. Other reasons might also be given. So far as I am personally concerned, I only desire to add that I still think that the definition of a decree in Section 2 is sufficiently wide to embrace the conclusion of the Court of the 21st November 1897. We ought to be chary in putting such a construction upon that definition as would lead to an in justice and this would be the result in the present case if we accepted the contention of the Appellant. 2. I notice a slight error in my observations when the matter was previously before the Court. I said that the point was decided "by the Bombay High Court," but, to be more accurate, I should have said "by one of the Judges of the Bombay High Court," in the case ILR (1891) Bom. 23 to which I referred. Prinsep J. 3. In my opinion the order of an Appellate Court dismissing an appeal for default of the Appellant is not a decree within the definition of that term as given in the Code of Civil Procedure. I hold that the cases of Jagarnath Singh v. Budhan ILR (1895) Cal. 115 and Anwar Ali v. Jaffer Ali ILR (1896) Cal. 827 were correctly decided. But I think that the present appeal should be dismissed on another ground. Section 211, Code of Civil Procedure, declares that the decree-holder shall be entitled to mesne profits from the institution of the suit until the expiration of three years from the date of the decree. It has been contended that, under the circumstances of the present case, that means the decree of the first Court. Section 211, Code of Civil Procedure, declares that the decree-holder shall be entitled to mesne profits from the institution of the suit until the expiration of three years from the date of the decree. It has been contended that, under the circumstances of the present case, that means the decree of the first Court. It seems to me that, as the case was taken in appeal to a higher tribunal, the judgment of the first Court could not be regarded as final in 'the formal expression of an adjudication upon the right claimed.' The order passed by the Court of first instance was no doubt a decree, but it was open to consideration by the appeal preferred against it and until the order of the Appellate Court, which might modify or reverse it, it was not the actual decree in the proceedings., It became the final decree by the order of the Appellate Court on the appeal; and although that order may not itself be a decree within the terms of the definition of a decree in the Code of Civil Procedure, in its effect it declared that the decree of the first Court was the final decree for purpose of limitation as expressed in Section 211. The date of the order of the Lower Appellate Court can therefore, in my opinion, be regarded as the date of the decree from which limitation would run. If we were to hold in the strict terms of the law that the date of the decree of the first Court was, under the circumstances, the time from which limitation would run, it might so happen that the judgment-debtor would, by taking his case up in appeal, deter the decree-holder from executing his decree for mesne profits, for it is not likely that the decree-holder would proceed with the execution of such decree when possibly it might be modified, or even set aside, by the Court of Appeal. The Appellant having thus deterred the decree-holder from executing his decree might then, as he has done in the present ease, choose not to proceed with his appeal and allow it to be dismissed for default and if the calculation of limitation be from the date of the decree of the first Court, it would so happen that the decree-holder would be wrongfully deprived of mesne profits to which he would otherwise be entitled if the appeal were heard. Sale J. 4. I agree in the view of the referring Court that the order or decree of this Court dismissing for default an appeal from a decree is a 'decree' within the meaning of Section 2 of the Code of Civil Procedure. I think that view is not only a possible but a reasonable one, having regard to the language of Section 2 and I see no reason whatever for adopting a narrow construction. Stevens J. 5. I am also of opinion that the order of the dismissal of the appeal for default amounts to a 'decree' within the definition. Geidt J. 6. I agree in the view expressed by My Lord the Chief Justice. Maclean C.J. 7. The result is that this case will be sent back to the Division Bench which made this reference with the expression of this our opinion. 8. The Respondent is entitled to the costs of this reference.