Judgment :- 1. In this second appeal preferred by defendants 1, 2,4 and 6 to 10, the question raised is one of limitation. The trial Court's decree in the case was passed on 1.8.1110. Against that decree the 2nd plaintiff had preferred an appeal to the District Court and that appeal was admitted and registered as A.S. No. 620/1110, but it was eventually dismissed on 25.3.1111 on account of the failure of the appellant to pay the deficit court fee due on the memorandum of appeal, within the period fixed by the Court. When the decree-holder filed the present execution petition on 24.3.1123, the defendants raised a plea of limitation and contended that the execution petition having been filed after the lapse of 12 years from the date of the trial court's decree, is out of time and unsustainable. The decree-holder replied that the period of limitation for execution of the decree has to be computed from 25.3.1111, the date on which A.S. No. 620/1110, the appeal against the trial court's decree was dismissed by the appellate court, and that there is no bar of limitation for the present execution petition filed within 12 years from that date and also within three years from 9.6.1122 the date of the dismissal of the prior execution petition. The execution court accepted the contentions of the defendants and held that the execution petition filed on 24.3.1123 is out of time. The lower appellate court, however, took a different view of the matter and held that the starting point of limitation for execution petition is the date of dismissal of A.S. 620/1110 and that the present execution petition is within time. The correctness of this view is challenged in this second appeal. 2. The question for consideration is whether the execution of the decree in this case is governed by Art. 182(2) of the Limitation Act. The provision in Cl. (2) of that Article is to the effect that where there has been an appeal, the date of passing the decree or order by the appellate court or the date of withdrawal of the appeal should be the starting point from which the period of limitation for execution has to be computed. The provision in Cl. (2) of that Article is to the effect that where there has been an appeal, the date of passing the decree or order by the appellate court or the date of withdrawal of the appeal should be the starting point from which the period of limitation for execution has to be computed. If it can be said that there has been an appeal against the trial court's decree in this case as contemplated by Art. 182, the decree-holder's execution petition filed on 23.4.1123 has to be held to be within time. But it is urged on behalf of the appellants that since the appeal preferred by the decree-holder, A.S. No. 620/1110, was dismissed for nonpayment of deficit court fee due on the appeal memorandum, it cannot be said that there has been an appeal in the proper sense of the term. The question therefore resolves to this: When can it be said that there has been an appeal? There is no definition given to the word "appeal" in the Civil Procedure Code. But there are enough provisions in the Code indicating the conditions to be satisfied in order that it can be said that there has been an appeal in any particular case. The right of appeal against the decree passed by any Court is conferred by S. 96 of the Code. In Cl. (1) of that section it is laid down as follows: "Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction to the Court authorised to hear appeals from the decisions of such Court." It is clear from this provision that the appeal must be filed to the Court having the appellate jurisdiction over the Court which passed the decree. R.1 of 0.41 lays down: "Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. R.1 of 0.41 lays down: "Every appeal shall be preferred in the form of a memorandum signed by the appellant or his pleader and presented to the Court or to such officer as it appoints in this behalf. The memorandum shall be accompanied by a copy of the decree appealed from and [unless the appellate Court dispenses therewith] of the judgment on which it is founded." R. 3 0.41 lays down that: "Where the memorandum of appeal is not drawn up in the manner herein before prescribed, it may be rejected, or be returned to the appellant for the purpose of being amended within a time to be fixed by the Court or be amended then and there." The procedure to be followed when a memorandum of appeal is admitted is prescribed in. This rule prescribes that when a memorandum of appeal is admitted the appellate court or the proper office of that court shall endorse thereon the date of presentation and shall register the appeal in a book to be kept for that purpose and known as the register of appeals. When a Memorandum of Appeal has thus been admitted and registered as an appeal it has to be taken that there has been an appeal in that particular case. 3. It is however argued on behalf of the appellant that in view of the mandatory provisions contained in the Court Fees Act the payment of the court fee payable on the memorandum of appeal is the essential condition to be satisfied before the memorandum of appeal is admitted and filed as an appeal. So far as the present appeal is concerned the Court Fees Act, which was in force during the relevant period was Act VI of 1087 of Travancore. S. 3 of that Act contains a provision similar to that contained in S. 2 of the present Act, Act II of 1125. The provision is to the effect that no document of any of the kinds specified in the first or second schedule to the Act annexed as chargeable with fees shall be filed, exhibited or recorded in any court of justice unless in respect of that document there be paid a fee of an amount not less than that indicated by either of the said schedules as the proper fee for such document. A memorandum of appeal is one of the documents specified in the 1st schedule annexed to the Court Fees Act. In view of the mandate contained in S. 3 of the Court Fees Act the court could refuse to accept the Appeal Memorandum presented to it unless the required court fee is also paid. If the court refuses to accept the memorandum of appeal or returns or rejects the same for the reason of the non-payment of the court fee due on it the result will undoubtedly be that there has been no appeal. But what would be the position in respect of a memorandum of appeal admitted by the court and registered as an appeal even before the levying of the court fee due on it? Can it be said that there has been no appeal at all unless and until the full fee due on the memorandum of appeal is paid? There is nothing in the Civil Procedure Code to indicate that only after payment of the full fee due on a memorandum of appeal can it be admitted and registered as an appeal. On the other hand there are provisions in the Code sanctioning the acceptance and registering of plaints and memoranda of appeals without the levy of the prescribed court fee; such are the provisions contained in Orders 33 and 44 of the Code. The provisions in these Orders sanction the filing of suits and appeals informa pauperis and the consideration of such suits and appeals even before the levy of the prescribed court fee. No doubt these provisions are exceptions to the general rule. All the same it is clear from these provisions that there could be suits and appeals even before the levy of the proper court fee due thereon. Such fee is normally to be recovered before or at the time of filing the suit or appeal. In exceptional cases the fee may be recovered at some stage subsequent to the filing of these documents. The levy of the prescribed fees at either of these stages would be sufficient to satisfy the requirements of the Court Fees Act. Necessarily it does follow that the payment of such fee cannot be a factor determining the question whether there has been a suit or an appeal in any particular case. The levy of the prescribed fees at either of these stages would be sufficient to satisfy the requirements of the Court Fees Act. Necessarily it does follow that the payment of such fee cannot be a factor determining the question whether there has been a suit or an appeal in any particular case. S. 149 of the Civil Procedure Code empowers the court to validate the proceedings already commenced on the basis of a document in respect of which the prescribed court fee has not been paid, by permitting the payment of such fee within a time fixed by the Court. The provision is as follows: "Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court fees has not been paid, the court may, in its discretion, at any stage, allow the person, by whom such fee is payable, to pay the whole or part as the case may be, of such court fee; and upon such payment the document, in respect of which such fee is payable, shall have the same force and effect as if such fee had been paid in the first instance". Thus if a memorandum of appeal happens to be admitted and registered as an appeal without levying the prescribed court fee the defect could be allowed to be remedied at any subsequent stage, when the same is brought to the notice of the court. The position taken up by the appellant is that only when the defect is thus cured can it be said that there is an appeal. The decision of a Full Bench of Allahabad High Court in Harihar Prasad Singh v. Beni Chand (A.I.R. 1951 All. 79) is relied on in support of that position. The view taken in that case is that S. 149 of the Civil Procedure Code has to be read as a proviso to the section of the Court Fees Act which prohibits the court from filing, exhibiting or recording a document unless the prescribed court fee has been paid. 79) is relied on in support of that position. The view taken in that case is that S. 149 of the Civil Procedure Code has to be read as a proviso to the section of the Court Fees Act which prohibits the court from filing, exhibiting or recording a document unless the prescribed court fee has been paid. Accordingly it is stated that when any such document happens to be received and filed in court it must be deemed to have been received merely for the purpose of enabling the party to pay up the prescribed fee within a time to be fixed by the court as contemplated by S. 149 of the Civil Procedure Code. With all respect to the learned judges who took part in that decision we have to point out that S. 149 as it stands does not warrant such a narrow and restricted construction being put up in it. It is expressly stated in the Section that the Court may in its discretion permit the party to pay the court fee at any stage. The expression "at any stage" indicates that it does not contemplate a case where the document is received and retained merely to enable the party to pay the court fee within the period to be fixed by the court. That contingency can arise only at the initial stage when it is known that the court fee due on the document has not been paid. In that case the court can certainly insist on the payment of the court fee before admitting and filing the document. S.149 contemplates a case where the nonpayment of the required court fee is detected or brought to the notice of the court at some stage subsequent to the admission and filing of the document. There is a corresponding provision in the Court Fees Act also enabling the court to regularise the proceedings already commenced on the basis of a document not properly taxed, by permitting the fee due thereon to be paid within the time fixed by the Court. That provision is contained in S.19 of the Act VI of 1087 corresponding to S.32 of Act II of 1125. That provision is contained in S.19 of the Act VI of 1087 corresponding to S.32 of Act II of 1125. The relevant provision is as follows: "But, if any such document is, through mistake or inadvertence, received, filed or used in any court or office, without being properly stamped, the presiding or senior judge in the Civil and Criminal Court or the head of the office as the case may be, or in the case of the High Court any judge of such court, may if he thinks fit, order that such document be stamped as he may direct; and on such document being stamped accordingly, the same and every proceeding relating thereto shall be as valid as if it had been properly stamped in the first instance. The Court may also pass an order in favour of the Government after giving notice to the party liable and hearing his objection, for the recovery, from him, with expenses of such recovery, of any court fee which he ought to have paid but has not paid; and the Government may recover the same as if the said order was a decree in its favour." It is clear from these provisions that the levy of the court fee contemplated therein is not at a stage prior to the admission and filing of the insufficiently stamped document but only at a stage subsequent to the filing of the document. The provision that on levying such court fee the document and every proceeding, relating thereto shall be as valid as if the fee had been levied at the 1st instance indicating unmistakably that the document had been filed and proceedings taken on the basis of that document. The provision enabling the court to pass an order directing the Sirkar to realise the court fee from the defaulting party also indicates that the primary object underlying the Court Fees Act is that the public revenue is realised at one stage or another. It is also significant to note that the provision quoted above is expressly made to govern such cases where the document is through mistake or inadvertence received, filed or used in any court or office without being properly stamped. It is also significant to note that the provision quoted above is expressly made to govern such cases where the document is through mistake or inadvertence received, filed or used in any court or office without being properly stamped. Thus it cannot be said that the provision for levy of the court fee as contained in S. 32 of the Court Fees Act or in S. 149 of the Civil Procedure Code relates to the stage of admission and filing of the document. On the other hand it is clear that these provisions come into effect only after the document not properly stamped and through mistake or inadvertence has been received, filed or used in any court or office. It follows therefore irrespective of the question as to whether the court fee due on the Appeal Memorandum has been levied or not, such memorandum will become an appeal when the same is admitted and registered as contemplated by 0.41 R.9. 4. A similar question regarding the effect of filing a plaint prepared on a paper insufficiently stamped came up for the consideration of a Full Bench of Madras High Court in Gangaranga Sahub v. Botokrishna Patro (I.L.R. 32 Mad 305). Such a plaint was filed within the prescribed period of limitation, but the deficiency in the court fee was made good with the sanction of the court only after the period of limitation prescribed for the suit had expired. It was held that the deficiency in the court fee paid at the time of filing the plaint did not matter and that the plaint had to be treated as a proper plaint filed within the period of limitation. It was further pointed out that a document purporting to be a plaint and drawn up in accordance with the relevant provisions of the Civil Procedure Code is a plaint whether it is properly stamped or not and that there is no justification for construing such a document as anything other than a plaint merely because the proper court fee due on it had not been paid. To the same effect is the decision of a Full Bench of the erstwhile Travancore High Court in Chembakom Kochu v. Mathevan (28 T.L.R. 36). The question of interpretation of the clause "where there has been an appeal" as used in Cl. To the same effect is the decision of a Full Bench of the erstwhile Travancore High Court in Chembakom Kochu v. Mathevan (28 T.L.R. 36). The question of interpretation of the clause "where there has been an appeal" as used in Cl. (2) of Art. 182 of the Limitation Act directly arose for consideration of the Judicial Committee of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey (A.I.R. 1932 Privy Council 165). The appeal that had to be construed in that case was one which was dismissed as being irregular in form and also defective for nonimpleading of all the necessary parties. In spite of these defects it was ruled by the Privy Council that there has been an appeal, within the meaning of Cl. (2) of Art. 182 of the Limitation Act and that the date of dismissal of that appeal was the starting point of limitation for the execution of the decree in the case. In the course of the judgment in that case Their Lordships of the Privy Council observed as follows: "There is no warrant for reading into the words "where there has been an appeal" any qualification either as to the character of the appeal or as to the parties to it; the words mean just what they say." There is nothing in the expression "where there has been an appeal" to suggest that the appeal contemplated is only an appeal in which full court fee due on it has been levied. There is no justification for thus qualifying the word "appeal" by reading more words into the expression "where there has been an appeal". The decision in A.I.R. 1932 Privy Council 165 was followed by the Patna High Court in Krishna Kant Prassad v. Radha Singh (A.I.R. 1938 Patna 79). In that case it was held that where an appeal presented on insufficiently stamped paper is duly admitted and registered and is subsequently rejected after hearing the parties the period of limitation for execution of the decree begins to run from the date of the final order of the appellate court. The question whether it can be said that there has been an appeal within the meaning of Art. 182 Cl. The question whether it can be said that there has been an appeal within the meaning of Art. 182 Cl. 2 of the Limitation Act, when a memorandum of appeal is rejected as being out of time came up for the consideration of the Madras High Court in Byya Reddi v. Gopala Rao (I.L.R. 57 Mad. 741). In that case the memorandum of appeal was presented beyond the period prescribed by law. There was also an application under S. 5 of the Limitation Act for condoning the delay. That application was rejected and as a consequence the memorandum of appeal also was rejected. It was ruled that since the memorandum of appeal had been filed out of time it cannot be said that there has been an appeal within the meaning of Art. 182(2) of the Limitation Act. The ground stated was that only when the memorandum of appeal is admitted by the Court can it be said that there has been an appeal. The ruling in A.I.R. 1932 Privy Council 165 was thus explained as governing only cases where the memorandum of appeal has been admitted and the appeal registered. This is the view taken by the Allahabad High Court also in Hari Har Prasad Singh v. Beni Chand (A.I.R. 1951 All. 79). It is pointed out in that case that there is clear distinction between a case in which memorandum of appeal has been returned before it is admitted and registered and a case in which the memorandum of appeal though insufficiently stamped has been by mistake or by inadvertence admitted and registered but subsequently rejected for non-payment of deficit court fee. It is said that in the latter case it must be held that there has been an appeal and a final order thereon and that in the former case it has to be held that there was no appeal at all. Thus the position is well settled that the proper procedure to be followed by a court in finding that the memorandum of appeal presented to it is not properly stamped is to refuse to admit and register it unless and until the required fee is paid up by the party concerned. Similarly if a memorandum of appeal is seen to be clearly out of time the court has to refuse to admit it unless and until the party has obtained an order condoning the delay. Similarly if a memorandum of appeal is seen to be clearly out of time the court has to refuse to admit it unless and until the party has obtained an order condoning the delay. But if due to mistake or inadvertence these defects are not noticed and the memorandum of appeal is admitted and registered the consequence is that there is an appeal as contemplated by Cl. 2 of Art. 182 of the Limitation Act. Where there has been an appeal in this sense the starting point of limitation for the execution of the decree in the case will be the date of the final order of the appellate court or the date of the withdrawal of the appeal as specified in Cl. 2 of the said Article. The present case satisfies all the essential elements required for the application of Cl. 2 of Art. 182 of the Limitation Act. Against the trial court's decree there was an appeal to the District Court as A.S. 620/1110. The memorandum of appeal was prepared in substantial compliance with S.96 and 0.41 R.1 of the Civil Procedure Code and was presented on 14.12.1110. The memorandum of appeal was insufficiently stamped. All the same it was duly admitted and registered as an appeal under R.9 of 0.41 of the Civil Procedure Code and numbered as A.S. 620/1119. subsequently the appeal was dismissed on 25.3.1111, for non-payment of court fee. These facts are seen from the copy of the decree in A.S. 620/1110 which is among the records in the case. Thus it is clear that there has been an appeal in this case as A.S. 620/1110 and that it was disposed of by the Appellate Court by its final order passed on 25.3.1111. The period of limitation for the execution of the decree in the case therefore commences on 25.3.1111 as per Cl. 2 of Art. 182 of the Limitation Act. The present execution petition filed on 24.3.1123 is within twelve years from the date of the final order of the Appellate Court in the appeal against the trial court decree and as such it is within time. The finding of the lower appellate court to that effect is therefore upheld. 5. In the result the Second Appeal is dismissed with costs. Dismissed.