Judgement Appeal (No. 19 of 1944) from an order of the High Court (August 19, 1942) affirming an order of the Subordinate Judge of Devakottai (July 10, 1940). The following facts are taken from the judgment of the Judicial Committee. This appeal raised the question whether an application for execution, No. 72 of 1940, preferred on November 25, 1939, for execution of a decree dated November 3, 1934, was barred by the Indian Limitation Act, and that depended on the construction of art.182 of the Act. That article was in the following terms— Description of Period Time from which period Application. of Limitation. begins to run. 182. For the execution of a decree Three years 1. 1. The date of the decree or order, or or order of any Civil Court not provided for by art. 183 or by s. 48 of 2. 2. (where there has been an appeal) the date of the Code of Civil Procedure, 1908. the final decree or order of the Appellate Court, or the withdrawal of the appeal, or 3. (where there has been a review of judgment) the date of the decision passed on the review, or 4..... 5. (where the application next hereinafter mentioned has been made) the date of the final order passed on an application made in accordance with law to the proper Court for execution or to take some step in aid of execution of the decree or order, or .... On November 3, 1934, a decree was passed on a promissory note in Original Suit No. 118 of 1934 by the Subordinate Judge of Devakottai, decreeing in favour of the present appellant payment of a sum of Rs.13,716.12.0., with interest and costs, by the defendants, who were two widows. It was ordered that the decree should be against the property of the joint family of which the husbands of the two widows had been members, and against the assets of a maker of the promissory note in the hands of the defendants. So the decree was not executable against the private property of the widows. For the purposes of this appeal it might be taken that the respondents represented the judgment-debtors under that decree, the appellant being the judgment-creditor. On December 14, 1934, the judgment-creditor presented a petition, which was numbered E.P. No. 418 of 1934, under r. 11 of Or. So the decree was not executable against the private property of the widows. For the purposes of this appeal it might be taken that the respondents represented the judgment-debtors under that decree, the appellant being the judgment-creditor. On December 14, 1934, the judgment-creditor presented a petition, which was numbered E.P. No. 418 of 1934, under r. 11 of Or. 21 of the Code of Civil Procedure, asking that the decree should be executed by the attachment of two sums of money in the hands of garnishees, alleged to be owing to the first defendant. On January 21, 1935, the learned judge made an order on that petition " rule V. E. A. Annamalai C hettiar V. Valliammai Achi 136 absolute,” which presumably meant that there was an order absolute for attachment of the moneys in the hands of the garnishees. On February 11, 1935, the judgment-creditor made an application, No. 123 of 1935 in E.P. No. 418 of 1934, asking that he might be appointed receiver to realize the amounts in the hands of the garnishees. On February 19, 1935, an application, No. 175 of 1935, was made in E.P. No. 418 of 1934 by the second defendant in the suit, asking that the order of attachment of the amounts in the hands of the garnishees might be set aside, her contentions being, in short, that she had not been served with the application for attachment, and that the moneys attached were her personal property and therefore not subject to the decree. On July 10, 1935, the learned Subordinate Judge on that application directed that there was no need to set aside the order of attachment, but that the petitioner should prefer a claim petition which might be inquired into under s. 47 of the Code of Civil Procedure, and the matter was adjourned to July 25. On the same date, namely, July 10, 1935, the learned judge dismissed the judgment-creditors application, No. 123 of 1935, for his appointment as receiver, directing tha he could make an application after the second defendants claim was disposed of. On the same date, namely, July 10, 1935, the learned judge dismissed the judgment-creditors application, No. 123 of 1935, for his appointment as receiver, directing tha he could make an application after the second defendants claim was disposed of. On July 25, 1935, the second defendant made an application, No. 527 of 1935, in E.P. 418 of 1934, under s. 47 of the Code praying that the attachment of the moneys in the hands of the garnishees might be raised, and on August 2, 1935, in view of the pendency of the last mentioned application, application No. 175 of 1935 for the raising of the attachment was dismissed. On October 22, 1936, the learned Subordinate Judge allowed the second defendants application and raised the attachment, and that order was made in E.A. No. 527 of 1935, in E.P. No. 418 of 1934, and in O.S. 118 of 1934. On the making of that order the execution of the decree was open; the judgment-creditor could either accept the order and seek to execute his decree by some method other than that asked for in E.P. 418 of 1934, or he could appeal against the order of the Subordinate Judge. He elected to adopt the latter course, and on December 3, 1936, he presented a memorandum of appeal to the High Court at Madras in E.A. 527 of 1935, in E.P. 418 of 1934 and in O.S. 118 of 1934, asking that the order of the lower court be set aside, and on September 27, 1938, that appeal was dismissed by the High Court. On November 25, 1939, as already mentioned, the judgment-creditor filed execution petition No. 72 of 1940, in O.S. No. 118 of 1934, asking that the decree of November 3, 1934, might be executed by attachment of certain movable property in the hands of defendants 2 and 3. The question for determination was whether that petition was in time. The Subordinate Judge held that the application was barred by time and should be dismissed. The High Court of Madras (Mockett and Happell JJ.) in the judgment under appeal took the view that from July 10, 1935, there was no execution petition or application outstanding, and that the petition No. 72 of 1940, being presented more than three years after that date, was out of time. 1945. June 12, 13. Eddy K.C. and J. M. Parikh for the appellant. 1945. June 12, 13. Eddy K.C. and J. M. Parikh for the appellant. It is common ground that art.182 of the Limitation Act applies. With regard to cl. 2 of art.182, " where there " has been an appeal,” in this case there was an appeal to the High Court by the decree-holder, the appellant here, from the order of the Subordinate Judge, dated October 22, 1936, raising the attachment, and the final order within the meaning of art. 182, cl. 2, was the order of the High Court of September 27, 1938. That date is crucial. The words where there has been an appeal were considered by the Board in Nagendra Nath Dey v. Suresh Chandra Dey (( 1932) L. R. 59 I. A. 283.) where in substance it was held that any application by a party to an appellate court asking it to set aside or revise the decision of a subordinate court is an appeal within the ordinary acceptance of that term, and it is no less an appeal because it is irregular or incompetent. An appeal arising out of a suit which bears, or may bear, on the execution of the decree V. E. A. Annamalai C hettiar V. Valliammai Achi 137 is within those words. With regard to d. 5 of art.182, the important matter is the final order "; the final order here was that of September 27, 1938. In accordance with law " in cl. 5 means in accordance with the law relating to the execution of decrees Govind Prasad v. Pawankumar (( 1943) L. R. 70 I. A. 83.). The proper court means the court whose duty it is to execute the decree of order. The material words are to take some step in aid of execution." The Madras High Court has always held that to be a step in aid of execution it must be in furtherance of execution proceedings. An application by way of objection would be a step in aid. It is submitted that the application of December 14, 1934, persisted throughout these proceedings and was alive up to at least the final order of September 27, 1938. The final order in that application within the meaning of cl. An application by way of objection would be a step in aid. It is submitted that the application of December 14, 1934, persisted throughout these proceedings and was alive up to at least the final order of September 27, 1938. The final order in that application within the meaning of cl. 5 of art.182 was the order of the High Court of September 27, 1938, and no order prior to it, and therefore time began to run from that date, and the application of November 25, 1939, is not barred by time. In Husain Asghar Ali v. Ramditta Mal (( 1932) L. R. 60 I. A. 83.) it was held that when an order is judicially made by an appellate court which has the effect of finally disposing of the appeal, such an order gives a new starting point for art.182, cl. 2. An appeal destroys the finality of an order of the court below Sheosagar Singh v. Sitaram Singh (( 1897) L. R. 24 I. A. 50.), which was referred to in Ashgar Ali Khan v. Ganesh Dass (( 1917) L. R. 44 I. A. 213.). [Reference was also made to Ramchand Manjimal v. Goverdhandas Vishindas Ratanchand (( 1920) L. R. 47 I. A. 124.), Nagendranath Banerji v. Ambikacharan Chakravarti (( 1930) I. L. R. 57 C. 549.), Abdul Rahman v. D. K. Cassim & Sons (( 1932) L. R. 60 I. A. 76.), and Sriramachandra v. Venkateswara (I. L. R. [ 1939] M. 252.).] " The counter " filed by the appellant on August 2, 1935, opposing the judgment-debtors application to raise the attachment was an application made in accordance with law to the proper court to take some step in aid of execution of his decree, and the final order thereon was passed on September 27, 1938. It was said in Kuppuswami Chettiar v. Rajagopala Aiyar (( 1922) I. L. R. 45 M. 466.) that a step in aid must be in a pending execution, but that view differs from Sankara Nainar v. Thangamma (( 1922) I. L. R. 45 M. 202.); those two cases are contradictory. The test is, is it intended to aid the execution—does the decree-holder by making his particular application intend to aid the execution of his decree? The test is, is it intended to aid the execution—does the decree-holder by making his particular application intend to aid the execution of his decree? [Reference was also made to Veerappa Setti v. Munisami Achari (( 1935) t L. R. 58 M. 301).] Krishna Patter v. Seetharama Patter (( 1926) I. L. R. 50 M. 49.) is not inconsistent with the position that has been taken on this appeal. September 27, 1938, is the crucial date from which time begins to run for the purposes of the petition of November 25, 1939, whether looking at cl. 2 or cl. 5 of art. 182, and that petition was accordingly within time. Subba Row for the respondents. Under cl. 1 of art.182 every application must be made within three years from the date of the decree. "Where there has been an appeal," in cl. 2 of art.182, means where there has been an appeal from the decree or order sought to be executed, and not any appeal in any proceeding; it must be one in respect of the subject-matter of the litigation Sriramachandra v. Venkateswara (I. L. R. [ 1939] M. 252.). Clause 2, therefore, does not apply to the facts of this case, and that view is reinforced by cls. 3 and 4, which in a sense are complementary Ahammad Kutty v. Kottekkat Kuttu (( 1932) I. L. R. 56 M. 458.); Koyakutti v. Veerankutti (( 1937) 1 Mad. L. J. 407.). Clause 5 of art.182 does not provide for an appeal, and the final order contemplated there is not the final order of the appeal court, but the final order of the court executing the decree. In this case the final order was the order of the court as recorded on the application—the order absolute of January 21, 1935, and that was the end of that application. Clause 5 requires (a) that there must be an application by the decree-holder; (b) it must be made in accordance with law; and (c) it must be made to the proper court. "The proper court" is defined in the explanation to the article as the court whose duty it is to execute the decree or order, and in this case it would mean the original court, the court of the Subordinate Judge. "The proper court" is defined in the explanation to the article as the court whose duty it is to execute the decree or order, and in this case it would mean the original court, the court of the Subordinate Judge. Limitation does not begin to run from the date of an application to the court, but from the date when the executing court makes a final order. "Final order" for limitation purposes means an order disposing of the application, whether it be one for execution or one to take a step in aid of execution. It would be final if it terminates the proceeding so far as the court passing it is V. E. A. Annamalai C hettiar V. Valliammai Achi 138 concerned Chidambara Nadar v. Rama Nadar (( 1937) 1 Mad. L. J. 453.); Muhammad Abu Bakkar Maracair v. Ramakrishna Chettiar (( 1933) 64 Mad. L. J. 401.). In cl. 5 there are no such words as could lead one to say that the final order means a final order made on an appeal in execution proceedings. There are no words about on an appeal" in cl. 5, and they are not necessarily implied, and .cl. 5 should be construed strictly. [Reference was made to Sheikh Nazir Hussain v. Muhammad Ejaz Hussain (( 1922) I. L. R. 1 Pat. 637.).] The application to raise the attachment of the moneys in the hands of the garnishees was not by the decree-holder, as required by .cl. 5, nor was it one for execution or to take a step in aid of execution. It was made to defeat, if anything, not to aid, execution. If the application was not a step in aid, neither would the appeal be. Also, the appeal made to the High Court on December 3, 1936, is not an application, and it is not made to the proper court—the executing court. On the meaning of " application see Ram Bharose v. Ramman Lal (( 1932) I. L. R. 7 Luck . 590). The order of the High Court of September 27, 1938, was not the final order of the executing court as contemplated by cl. 5, and time would not begin to run from that date, but only from the order of the Subordinate Judge, and the application of November 25, 1939, was therefore out of time. No reply was required. July 30. 5, and time would not begin to run from that date, but only from the order of the Subordinate Judge, and the application of November 25, 1939, was therefore out of time. No reply was required. July 30. The judgment of their Lordships was delivered by SIR JOHN BEAUMONT. The application for execution, No. 72 of 1940, is clearly barred by cl. 1 of art. 182 unless it can be brought within one of the later paragraphs Clause 2 has no application, since there was no appeal against, or affecting the validity of, the decree; nor does cl. 3 apply, since there was no application for review of judgment. Clause 4 is irrelevant so far as this case is concerned. The question, therefore, is whether the case falls within cl. 5. To bring the case within that clause it must be shown that there was an application made in accordance with law to the proper court, either for execution, or to take some step in aid of execution, of the decree, and if there was such an application time runs from the date of the final order passed thereon. It is necessary, therefore, to look somewhat closely at the facts, which are not in dispute, to see whether the requisite application was made and finally disposed of within three years. His Lordship then stated the facts set out above and continued The High Court of Madras in the judgment under appeal took the view that from July 10, 1935, there was no execution petition or application outstanding, and that the petition No. 72 of 1940, being presented more than three years after that date, was out of time. Their Lordships are unable to appreciate this view, which ignores the fact that on July 10, 1935, an application by one of the judgment-debtors to set aside the " attachment " was pending on the records of the court, and the further fact that on September 27, 1938, this application was finally disposed of by an order made by the High Court of Madras in E.P. 418 of 1934, which could not have been done had that petition terminated in July, 1935. Subject to the question whether the High Court of Madras was the proper court within art.182, cl. 5, their Lordships are clearly of opinion that the appellant brings his case within both branches of that clause. Subject to the question whether the High Court of Madras was the proper court within art.182, cl. 5, their Lordships are clearly of opinion that the appellant brings his case within both branches of that clause. Execution petition No. 418 of 1934 was an application made according to law for execution of the decree, and it was finally disposed of by the order of the Court of Appeal made on September 27, 1938, which brings the case within the first branch. Further, the application to the Court of Appeal of December 3, 1936, to set aside the order of the Subordinate Court raising the attachment was an application according to law to take a step in aid of execution of the decree. There has been some difference of opinion in the courts in India as to what amounts to taking a step in aid of execution, and the judgment under appeal discusses various decisions, including a decision of the High Court of Madras in Kuppuswami Chettiar v. Rajagopala Aiyar (( 1922) I. L. R. 45 M. 466.), in which it was held that there could not be a step in aid of execution if there was not an application for execution then pending, and another decision of the same court in Krishna Patter v. Seetharama Patter (( 1926) I. L. 4 Law. Rep. 72 Ind. App. 296 ( 1944- 1945) V. E. A. Annamalai C hettiar V. Valliammai Achi 139 R. 50 M. 49.), in which it was held that a step in aid of execution must be one in furtherance of execution and not merely one seeking to remove an obstruction to possible future execution. Their Lordships do not find it necessary to express any opinion on these questions, since in the present case there was at all material times an application for execution pending, and on any view of the matter an application to set aside an attachment is a step, in the circumstances the only step open, in aid of execution. The only other point to be considered, and this was the point principally stressed on this appeal, is whether the High Court of Madras was the proper court within art. 182, cl.5 Explanation 2 to art.182 enacts that the proper court means the court whose duty it is to execute the decree or order. The only other point to be considered, and this was the point principally stressed on this appeal, is whether the High Court of Madras was the proper court within art. 182, cl.5 Explanation 2 to art.182 enacts that the proper court means the court whose duty it is to execute the decree or order. In Govinddas Rajaramdas v. Ganpatdas Narotamdas (( 1923) I. L. R. 47 B. 783.), an Appeal Bench of the Bombay High Court held that an appeal to the High Court against an order in execution was not an application according to law to the proper court, and Macleod C.J. stated (( 1923) I. L. R. 47 B. 783, 784.) M It certainly cannot be said that an " appeal to the High Court against an order in a dharkast is an " application in accordance with law to the proper court for " execution. The High Court is not a court whose duty it is to " execute decrees passed by the lower courts.” This view was accepted by the High Court in the judgment under appeal, but their Lordships think that it is fallacious. Under s. 107 of the Code of Civil Procedure an appeal court has the same powers, and is required to perform, as nearly as may be, the same duties as are conferred and imposed by the Code on courts of original jurisdiction. Where an application for execution is dismissed by the lower court, the appeal court is the proper, and indeed, the only, court which can then execute the decree. No doubt in practice a High Court does not itself generally execute the decrees of lower courts; normally it remands the case to the lower court with directions to execute according to law on the basis of the High Courts decision; but in a proper case the High Court would no doubt execute the decree or order itself. In their Lordships view there can be no doubt that the High Court of Madras was the court whose duty it was to execute the decree of November 3, 1934, in the manner asked for in E.P. 418 of 1934, if such manner were legal, after the attachment had been raised by the lower court. The appellant, therefore, has brought himself within cl. 5 of art. The appellant, therefore, has brought himself within cl. 5 of art. 182, and his petition No. 72 of 1940 being presented within three years of the order of the High Court finally disposing of the execution petition No. 418 of 1934 is in time. Their Lordships will, therefore, humbly advise His Majesty that this appeal should be allowed, and that the matter should be remitted to the High Court of Madras with directions that the execution petition No. 72 is within time and should be dealt with according to law. The respondents must pay the costs to date of execution petition No. 72 of 1940, including the costs of this appeal.