JUDGMENT : Banerji, J. This is an appeal from an order of the lower appellate Court dismissing the appellant's application for execution on the ground that it was barred by limitation. In order to understand the position of the parties it is necessary to state the following facts. The plaintiff decree-holder brought a suit for possession of a share in a house. The Court of first instance dismissed the suit on the 24th of December, 1896. The decree of that Court was set aside in appeal, and the case was remanded under section 562 of the Code of Civil Procedure on the 4th of August, 1897. The Court of first instance after remand decreed the claim on the 21st of September, 1897. An appeal preferred from this decree by the defendant, prevailed in, the appellate Court, which dismissed the suit on the 26th of August, 1898. Upon second appeal to this Court the decree of the Court below dismissing the suit was set aside on the 30th of January, 1901, and the case was remanded to the lower appellate Court under section 562 of the Code. After the remand one of the defendants died. No legal representative of the deceased having been brought on the record, the Court held on the 5th of June, 1902, that the appeal had abated and it passed a decree which in terms affirmed the decree of the Court of first instance, dated 21st September, 1897”. On the 19th January, 1904, the present application for execution was made. The judgment-debtors objected that execution was barred by limitation. The Court of first instance over-ruled the objection but the lower appellate Court allowed it. It held relying upon the ruling of this Court in Fazal Husain v. Raj Bahadur, [1897] I.L.R., 20 All, 124 that an order by which an appeal abates is not the final decree or order contemplated by article 179, section II of the Limitation Act. I do not deem it necessary to express any opinion as to the correctness or otherwise of that view, in as much as in the present case the decree made on the 5th of June, 1902, in terms affirmed the decree of the Court of first instance, dated 21st September, 1897. I do not deem it necessary to express any opinion as to the correctness or otherwise of that view, in as much as in the present case the decree made on the 5th of June, 1902, in terms affirmed the decree of the Court of first instance, dated 21st September, 1897. That decree is a final decree of the appellate Court within the meaning of article 179 and gave the decree-holder a new start for the computation of limitation. Further, the decree of the Court of first instance which had been set aside by the appellate Court could not be executed so long as the decree of the latter Court subsisted as a decree binding upon the parties. “It was only when that decree was set aside by this Court that the decree of the Court of first instance revived and became capable of execution. This was on the 30th of January, 1901, and the present application was made within three years from that date. If I were to hold otherwise, the result would be that a person in the position of the present decree-holder would have no remedy for the enforcement of the decree granted to him. The decree-holder could not, as I have said above, apply for execution of the decree of the Court of first instance after it had been set aside by the lower appellate Court, and if the second appeal from that decree and the proceedings subsequent to remand made by this Court remained pending for more than three years as they did in the present instance he could not have any opportunity of applying for execution within three years from the date of the decree of the Court of first instance. I think in a case like this, the decree-holder is entitled to execute his decree within three years from the date on which it became capable of execution. As the present application was made within the period of three years from such date, it is not time-barred. I accordingly allow the appeal, set aside the decree of the Court below and restore that of the Court of first instance with costs in all Courts.