Kesava Pillai v. Jathavetharu Bhattathiri — 1953 DIGILAW 73 (KER)

Judgment :- 1. In view of the importance of the question of limitation raised in this appeal the Division Bench before which the appeal first came up for hearing referred the case for decision by a Full Bench and accordingly it has come up for decision before this Full Bench. The facts relevant for the purpose of this appeal are the following: The trial court's decree was passed on 13-12-1109. The decree is a registered decree and under it the plaintiff has been allowed to recover the plaint items 1 to 4 from defendants 1 and 2 on depositing in court Rs. 681 Ch. 19 Cash 8 for payment to these defendants on account of the value of improvements effected on the properties. The first defendant has also been made liable for a sum of 2117/8 Fs. by way of arrears of pattom and interest. This amount has been directed to carry future interest at 6% per annum. Title to plaint item 5 has been also declared in favour of the plaintiff and the 3rd defendant and the plaintiff have been allowed to recover this property also with mesne profits at the rate of 9871/2 fanams per year from the date of suit to the date of the decree and for a further period of 3 years or till date of recovery of the property at an earlier period. The decree disallowed the other reliefs that the plaintiff had claimed against the 2nd defendant and his tarwad. As between the plaintiff and the first defendant, costs have been allowed in proportion to their success in the suit. In respect of the matters which were decided against the plaintiff he preferred an appeal to the Travancore High Court. The appeal was admitted and filed as A. S. No. 328 of 1110. Defendants 1 to 6 were respondents 1 to 3 in that appeal. During the pendency of that appeal the first defendant first respondent died on 11-6-1110 (as seen from the records). His legal heirs were not brought on record within the period of 90 cays allowed by Article 172 of the Travancore Limitation Act corresponding to Article 177 of the Indian Limitation Act. During the pendency of that appeal the first defendant first respondent died on 11-6-1110 (as seen from the records). His legal heirs were not brought on record within the period of 90 cays allowed by Article 172 of the Travancore Limitation Act corresponding to Article 177 of the Indian Limitation Act. The question of abatement of the appeal was raised at a later stage and the matter finally came up before a Bench of two judges who passed the following order on 4-12-1115: "This appeal has abated and is dismissed. No order as to costs." After the records were received back in the first court, the plaintiff-decree-holder filed the present execution petition on 4-12-1121 for executing the decree dated 13-12-1109 after impleading the legal representatives of the first defendant as additional defendants 4 to 14. The additional 7th defendant resisted the execution petition on several grounds, the most important of them being, that the first defendant's legal representatives cannot be impleaded in execution, that the decree has become barred by limitation, that the claim for future mesne profits for a period more than three years is unsustainable, that the amount as claimed in the execution petition is not due to the plaintiff and that none of the reliefs claimed in the petition can be granted. These objections were disposed of by the execution court by a summary order which has adverted only to the plea of limitation raised by the 7th defendant. Even that plea has been overruled by simply stating that "it is seen that there is no bar as the High Court decree was on 4-12-1115 and this application is filed on 4-12-1121". It is this summary order that is challenged by the 7th defendant who is the appellant before this Court. 2. If the appellant's contention that the execution of the decree in the case has become barred by limitation is to prevail no further question will arise for consideration. If on the other hand his plea of limitation fails the other objections raised by him have to be considered before proceeding with the execution of the decree and since the execution court has completely overlooked those objections the case has necessarily to be sent back to that court for a proper consideration and disposal of those objections also. 3. If on the other hand his plea of limitation fails the other objections raised by him have to be considered before proceeding with the execution of the decree and since the execution court has completely overlooked those objections the case has necessarily to be sent back to that court for a proper consideration and disposal of those objections also. 3. In support of the plea of limitation raised by the 7th defendant appellant the points urged are: (1) that by operation of law the appeal A. S. No. 328 of 1110 that had been preferred by the plaintiff-deeree-holder had abated on the expiry of 90 days from 11-6-1110 the date on which the first defendant died and that therefore the subsequent order passed in that appeal on 24-1-1115 dismissing the appeal on the ground that it has abated cannot give a starting point for the execution of the decree in the case, and (2) if the appeal is deemed to have been finally disposed of only on 4-2-1115 the order passed on that day must be taken to be the final decree in the case and since that decree is not registered as required by law the execution petition filed beyond three years from that date is barred by limitation. 4. The questions raised in this appeal have to be decided in the light of the provisions contained in Article 166 of the Travancore Limitation Act corresponding to Article 182 of the Indian Limitation Act. Excepting for the additional provision contained in column (2) of Article 166 of the Travancore Act relating to the filing of a memorandum of the decree or order relating to immoveable property as per section 15 of the Travancore Registration Act-Act II of 1087-the other provisions in Article 166 are substantially the same as those in Article 182 of the Indian Act. Of the several dates indicated in the third column of these articles from which period of limitation has to be computed in respect of an application for execution of a decree or order the dates indicated by clauses (1) and (2) are alone relevant for the purpose of this appeal. Leaving aside the remaining clauses under column 3, Article 166 of the Travancore Act as also Article 182 of the Indian Act are extracted below for easy reference. Leaving aside the remaining clauses under column 3, Article 166 of the Travancore Act as also Article 182 of the Indian Act are extracted below for easy reference. In this discussion to follow reference will be made only to Article 182 of the Indian Act. 5. It is obvious that article 182 is worded in general terms so as to apply to all executable decrees or orders. In the present case we are concerned with the execution of the decree that had been passed in the suit on 13-12-1109. If there was no appeal against that decree the period of limitation for the execution of that decree would undoubtedly have run from 13-12-1109 itself as per clause (1) of column 3 of Article 182; but as a matter of fact there was an appeal against that decree and it was admitted and filed as A. S. No. 328 of 1110 and necessarily, therefore, the starting point for computation of the period of limitation for execution of the decree is the one indicated by clause (2) of column 3. As per clause 2 the period of limitation for the execution of the decree begins to run from the date of the final decree or order of the appellate court or the withdrawal of the appeal. The latter part of this clause does not apply to this case because there has not been any withdrawal of the appeal which had been preferred against the decree in this case. It has only to be seen whether the appeal has been disposed of by a final decree or order of the appellate court and if so what is the date of such final decree or order. The records show that the appeal A. S. No. 328 of 1110 came up for final hearing on 4-12-1115 and that on the same day the Division Bench before which it came up for hearing disposed of the appeal in the following terms: "The appeal has abated and is dismissed. No order as to costs." There is hardly any room for doubt that this is the final order passed by the appellate court in A. S. No. 328 of 1110 so as to bring it within the letter and spirit of clause^ (2)- of the third column of Article 182. No order as to costs." There is hardly any room for doubt that this is the final order passed by the appellate court in A. S. No. 328 of 1110 so as to bring it within the letter and spirit of clause^ (2)- of the third column of Article 182. By a strict and literal application of this clause it is clear that the period of limitation for the purpose of execution of the decree in the case has to be computed from 4-12-1115, the date of the final order passed by the appellate court on the appeal that had been preferred against that decree. The argument advanced on behalf of the appellant is that the appeal had really abated long prior to 4-12-1115 and that the order passed on 4-12:-1115 that the appeal has abated and is dismissed was unnecessary and superfluous and as such that order has only to be ignored. The difference in the wording of Ss. 366 and 368 of the Code or Civil Procedure of the year 1882 as compared with the corresponding provisions contained in Rr. 3 and 4 of Order XXII of the present Code is also urged in favour of such an argument. S. 356 of the old Code stated that if within the time limited by law no application to continue the suit be made to the court by any person claiming to be the legal representative of the deceased plaintiff "The court may pass an order that the suit shall abate." When this section was replaced by R. 3 of Order XXII of the present Code, the provision made in sub-rule 2 is to the effect that where within the time limited by law the legal representative of the deceased plaintiff does not apply to be brought on record "the suit shall abate so far as the deceased plaintiff is concerned." Abatement is a legal consequence flowing from the omission to take the necessary steps within the time limited by law to implead the legal representative of the deceased plaintiff and a formal order of the court is not necessary for such a consequence to happen. That must be the reason why the framers of the Code chose to use the expression that the suit shall abate so far as the deceased plaintiff is concerned in Order XXII R. 3 (2) instead of the expression that the "court may pass an order that the suit shall abate" as contained in S. 366 of the old Code. In dealing with the consequence of the plaintiff's failure to make an application within the prescribed time to implead the legal representative of the deceased defendant the provision contained in S. 363 of the old Code was that the suit shall abate as against such defendant. The identical provision is contained in Order XXII R.4 -clause 3, also. The effect of these provisions is only that the abatement takes place by operation of law and it does not depend on any order of the court. But this legal position is of no consequence in deciding the question of limitation at hand. The date of actual abatement of the appeal is not mentioned in clause 2 of column 3 of Article 182 as the date from which limitation has to run for the execution of a decree from which there has been an appeal. An abatement by itself not followed by any decree or order of the court cannot be construed to be the final decree or order of the appellate court as contemplated by clause 2 of column 3 of Article 182. Any such decree or order cannot be implied, but must be express. If the Legislature wanted to treat the abatement of the appeal as having the effect of a final decree or order of the appellate court a provision to that effect would have been made in clause 2 and the date of the abatement would also have been mentioned as a date from which limitation for the execution of the decree would run. An instance where the starting point of limitation is indicated in general terms is found in Article 12 which prescribes a period of one year for suits to set aside court sales and revenue sales. An instance where the starting point of limitation is indicated in general terms is found in Article 12 which prescribes a period of one year for suits to set aside court sales and revenue sales. In the third column of that article the starting point of limitation is indicated as follows: "When the sale is confirmed or otherwise becomes conclusive had no suit been brought." But in specifying the dates under clause 2 of column 3 of Article 182 the Legislature did not think it necessary to include the date of abatement of the appeal even though the date of the withdrawal of the appeal has also been included in that clause. What the Legislature did not want to provide for cannot be added by the court. The court has only to construe the provision as it stands, no matter how arbitrary the provision might appear to be. The oft-quoted dictum of the Privy Council in Nagendra Nath v. Suresh (A. I. R. 1932 P. C. 165) may be recalled in this connection. In that case Their Lordships of the Privy Council stated as follows: "Fixation of the period of limitation must always be to some extent arbitrary and may frequently result in hardship but in construing such provisions equitable consideration is out of place and the strict grammatical meaning of the words is the only safe guide." Construing clause 2 of column 3 of Article 182 in the light of this principle there is absolutely no scope for reading into it the date of the mere abatement of the appeal not followed by any order court as furnishing a starting point of limitation for the execution of the decree. There appears to be very good reason why the Legislature has deliberately refrained from inserting any such provision in this clause. A party to an appeal may have died and within the time prescribed by law, no steps may have been taken to implead his legal representative with the result that the appeal may have really abated against the deceased party; but still he may continue to be on the file of the appellate court unless and until the fact of such abatement has been brought to the notice of the court and the court records the fact of such abatement and removes the appeal from its file. This means that even though the legal effect of the abatement may have already taken place an order of the court is necessary for a final and effective disposal of the appeal. Where there is dispute about the date of the death of the party and also about the fact of the abatement the matter may have to be judicially enquired into and the result of such inquiry may alone solve the question whether the appeal has to be disposed of as having abated or not. Similarly the question whether the abatement of the appeal as against one of the parties to it has the effect of the abatement of the appeal against all, may call for a decision of the court. All, such enquiries and decisions have necessarily to be undertaken by the court before finally disposing of the appeal. Thus it Will not be correct to say that in the case of abatement of an appeal it is unnecessary or superfluous for the appellate court to pass final orders disposing of the appeal. On the other hand it appears that even in cases of abatement an order of the court which has entertained the appeal is necessary to have it removed from the file. Such a final order will undoubtedly come under clause 2 of column 3 of Article 182. The Court called upon to execute the decree can go into the question of limitation only on the basis of such an order and its date. In the absence of any such final order, questions as to whether there has really been a total abatement of the appeal and as to the date of the abatement may be raised in the execution court whose function is only to execute the decree as it stands after deciding the question of limitation with reference to all the material dates disclosed by the records placed before it and not to embark upon an enquiry into vexed questions of law and fact as already indicated and to give its own decisions on such questions. This must obviously be the reason why in drafting clause 2 of column 3 of Article 182 the Legislature envisaged only two contingencies under which an appeal entertained by an appellate court could be deemed to have been finally disposed of, viz. This must obviously be the reason why in drafting clause 2 of column 3 of Article 182 the Legislature envisaged only two contingencies under which an appeal entertained by an appellate court could be deemed to have been finally disposed of, viz. by its being allowed to be withdrawn, or by the court disposing of the appeal by passing a final decree or order 'thereon. There' has clearly been such a final order in this case on 4-12-1115 and hence limitation for the execution of the decree should be reckoned from that date. 6. Two decisions of the Privy Council are relied on by the learned Advocate for the appellant in support of his contention that a mere order of dismissal of the appeal will not give a starting point of limitation for the execution of the decree under clause 2 of column 3 of Article 182. Batuk Nath v. Munni Dei (I.L.R.36 Allahabad 284) and Abdul Majid v. Jawahar Lal (I.L.R. 36 Allahabad 350) are these two cases. In the first case the appeal happened to be dismissed for the failure of the appellant to take the necessary steps for the prosecution of the appeal-The matter was governed by rule 5 of the Order-in-Council dated 15th June 1853. That rule stated that in the case of default by the appellant or his advocate to take effective steps for the prosecution of the appeal within the prescribed time the appeal shall stand dismissed without further order. It was by virtue of such a special rule that the appeal in that case happened to be dismissed. In such a situation there was no necessity for the appeal to be placed before the Judicial Committee of the Privy Council for disposal. As a matter of fact the appeal had not come up before the Judicial Committee and there was no order of His Majesty-in-Council in dismissing the appeal. It was for this reason that it was ruled in that case that the appellant's position was the same as if no appeal was preferred and that it could not be said that there was an appeal and it was dismissed by a final decree or order as contemplated by clause 2 column 3 of Article 182. It was for this reason that it was ruled in that case that the appellant's position was the same as if no appeal was preferred and that it could not be said that there was an appeal and it was dismissed by a final decree or order as contemplated by clause 2 column 3 of Article 182. In the second case also the dismissal of the appeal was for want of prosecution and there also it was pointed out by Their Lordships of the Privy Council that the order dismissing the appeal merely recognised authoritatively that the appellant had not complied with the conditions under which the appeal was open to him and that therefore he was in the same position as if he had not appealed at all. It is clear that the decision in each of these two cases was sought to be justified by the peculiar circumstances of that case. This aspect has been pointed out by Their Lordships of the Privy Council in Husain Asghar Ali v. Ramditta Mal (I. L. R. 60 Calcutta 662). There the question that pointedly arose for consideration was whether the order of the appellate Court dismissing the appeal on the ground that it has abated would not give a starting point of limitation for execution of the decree in the case. After explaining and distinguishing the two earlier decisions already referred to, the judicial Committee of the Privy Council definitely ruled in Husain Asghar Ali v. Ramditta Mal (I. L. R. 60 Calcutta 662) that when an order is judicially made by an appellate Court which has the effect of finally disposing of an appeal such an order gives a new starting point for the period of limitation prescribed by Article 182 (2) of the Act of 1908. The correctness of the decision to the same effect in Gohur Bepari v. Ram Krishna Saha (A.I.R.1927 Calcutta 760) was also expressly affirmed by the Privy Council in Husain Asghar Ali v. Ramditta Mal (I.L.R. 60 Calcutta 662). The correctness of the decision to the same effect in Gohur Bepari v. Ram Krishna Saha (A.I.R.1927 Calcutta 760) was also expressly affirmed by the Privy Council in Husain Asghar Ali v. Ramditta Mal (I.L.R. 60 Calcutta 662). In Murli Dhar v. Mahabir Singh (A.I.R. 1941 Allahabad 371) and in Kunjithapatham v. Saraswathi Ammal (A.I.R. 1941 Madras 671) also it has been ruled that an order of the appellate Court dismissing the appeal on the ground that it has abated is the final order on the appeal and the period of limitation for the execution of the decree in the case has to be computed from the date of - such an order. The argument that abatement had already taken place and that no order of the court was necessary for such a legal consequence to follow was also taken note of in both these cases and it was pointed out that when the attention of the Court is drawn to the fact of such abatement and the Court passes an order recognising such abatement and dismissing the appeal for that reason, the Court deals with the matter judicially and finally and as such that order has to be deemed to be the final order on the appeal and that limitation for' execution of the decree in the case has to be computed from the date of that order. To the same effect is the decision in Subramonia Iyen v, Ananda Row (18 Travancore Law Reports 119) (F. B.) and Appora v. Velayudhan Pillai (22 Travancore Law Journal 577). It is needless to multiply authorities. Suffice it to say that the preponderance of judicial opinion is in favour of the view that when the appellate Court passes an order declaring that the appeal has abated and dismissing the appeal on that ground it is the final order coming under-clause 2 column 3 of Article 182 and that the period of limitation for the execution of the decree in the case commences from the date of that order. Any other view would be unsustainable in law and would be opposed to the clear provision contained in clause 2 column 3 of Article 182. 7. The second point urged on behalf of the appellant may now be considered. Any other view would be unsustainable in law and would be opposed to the clear provision contained in clause 2 column 3 of Article 182. 7. The second point urged on behalf of the appellant may now be considered. The contention is that the final decree in the case is the decree passed by the appellate court on 4-12-1115 and that since that decree has not been registered as required by law the three year period of limitation prescribed under Article 182 has to govern the application for execution of that decree. This contention proceeds on the assumption that the final order passed by the appellate Court on 4-12-1115 has resulted in the passing of a fresh decree in the case by the appellate Court. How far this assumption is correct has therefore to be examined. If the appellate Court has passed a decree superseding the decree under appeal it is clear that the executable decree in force will only be the appellate Court decree. Where the appellate Court reverses or modifies the decree under appeal then there is a patent supersession of that decree by the decree of the appellate Court. Even where the appellate Court affirms the decree under appeal there is a merger of that decree in the decree of the appellate Court and the decree that is capable of execution will be the appellate Court's decree. Such an affirmation of the decree under appeal may either be express or be implied in the final order of the appellate Court dismissing the appeal. But it cannot be said that every dismissal of an appeal results in a confirmation of the decree under appeal with the inevitable consequence of that decree being merged in the decree of the appellate Court. There may be instances where the dismissal of the appeal may be solely due -to the fact that the appeal is not properly constituted so as to give the appellate Court the necessary jurisdiction to deal with the appeal on its merits and to pass its own decree reversing, modifying or confirming the decree under appeal. A mere dismissal of the appeal on the ground of abatement falls under this category. The appeal abates merely because the legal representatives of the deceased party are not brought on record within the time prescribed by law. A mere dismissal of the appeal on the ground of abatement falls under this category. The appeal abates merely because the legal representatives of the deceased party are not brought on record within the time prescribed by law. Thus the appeal becomes improperly constituted for want of all the necessary parties on the record. On the basis of such an appeal the appellate Court will not be competent in any way to interfere with the decree under appeal„ no matter whether such interference is by way of reversal, modification or confirmation. The dismissal of the appeal under such a situation has only the effect of a declaration by the appellate Court that there has not been a properly constituted appeal. Such a dismissal is a mere order of dismissal and it can in no sense be »aid to be a decree of the appellate Court. The appellate Court may finally dispose of the appeal either by a mere order of dismissal or by passing a decree of its own. Both these contingencies have been provided for in clause 2, column 3, Article 182. Where the appeal is withdrawn the appellate Court has only to strike off or dismiss the appeal for that reason. The withdrawal is an intimation to the court that the appellant does not want a decision of the appeal on its merits and hence the dismissal consequent on such withdrawal cannot be said to result in a confirmation of the decree under appeal by the appellate Court. Such a dismissal does not result in any independent decree of" the appellate Court wherein the decree under appeal can be said to have become merged. The position is the same where the appeal is allowed to be dismissed for mere default and also where the appeal is allowed to abate and to fall through on that ground. An order of dismissal for default is expressly excluded from the definition of the word "decree" given in clause 2 of section 2 of the Code of Civil Procedure. A dismissal for default' 'cannot also be said to involve any formal adjudication conclusively determining the rights, of the parties with regard to all or any of the matters in controversy in the suit. A dismissal for default' 'cannot also be said to involve any formal adjudication conclusively determining the rights, of the parties with regard to all or any of the matters in controversy in the suit. A declaration that the suit or appeal has abated, which abatement is the direct result of the default in the matter of taking the necessary steps to bring on record the legal representatives of the deceased party cannot also amount to any formal expression of adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy in the suit. In cases coming under these categories the decree under appeal remains in tact and it is the only decree that is capable of being put into execution. In Abdul Majid v. Jawahir Lal (I. L. R. 36 Allahabad 350) Their Lordships of the Privy Council explained the effect of an order dismissing an appeal for want of prosecution in the following terms: "The order dismissing the appeal for want of prosecution did not deal judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. It merely recognises authoritatively that the appellant has not complied with the conditions under which the appeal was open to him, and that therefore he was in the same position as if he had not appealed at all." To the same effect is the ruling in Shyam Mandal v. Satinath Banerje (I.L.R. 44 Calcutta 954) where it was pointed out that the doctrine that where the appellate Court decree confirms, amends or reverses original decree the latter decree is merged in the appellate decree which is the only decree that can be executed, cannot be applied when the appeal is dismissed for default and that in such a case the appeal fails for non-prosecution and it cannot be said that the Court of Appeal adopts the decree of the primary Court. It was also ruled that the decree to be enforced in such a case is the decree of the primary Court. It was also ruled that the decree to be enforced in such a case is the decree of the primary Court. The effect of an order permitting the withdrawal of an appeal was considered in Deoki v. Jwala Prasad (I.L.R. 50 Allahabad 608) and there also it was pointed out that when an appellate Court does not judicially deal with the matter of a suit but merely permits an appeal to be withdrawn so that the decree of the Court below is left in tact, it cannot be said that it has confirmed the decree appealed from. In Ram Rakhan v. Govind Das (I.L.R. 1945 Allahabad 499) it was again pointed out that an order dismissing an appeal for default does not amount to a decree and consequently the decree of the lower court does not merge in any decree of the appellate Court. In Bhavani v. Kanni (1948 Travancore Law Reports 165) it was held that an order dismissing an appeal for default does not amount to a decree and that the only decree in the case that is capable of execution is the decree of the primary court. Kalimuddin Ahammed v Esahalcuddm (I.L.R. 51 Calcutta 715) was a case where the appeal against the decree of the primary Court had abated. It was held that there has been no adjudication on the merits of the appeal but on the contrary there was an express refusal to adjudicate and that therefore it cannot be said that the order declaring the appeal to have abated or the order dismissing the appeal for that reason does amount to a decree in which the decree of the lower court can be said to have merged. It was also held that the decree which retrains capable of execution is the decree of the primary Court. In Kali Dayal v. Nagendra (1919) XXX Calcutta Law Journal 217) it was ruled that when the appeal abated as regards the heirs of the deceased respondent the appeal thereafter became imperfectly constituted so that the appellant could no longer invite the Court to adjudicate upon the matter in controversy. In Kali Dayal v. Nagendra (1919) XXX Calcutta Law Journal 217) it was ruled that when the appeal abated as regards the heirs of the deceased respondent the appeal thereafter became imperfectly constituted so that the appellant could no longer invite the Court to adjudicate upon the matter in controversy. The question whether an order of abatement amounts to a decree was considered by a Full Bench of the Lahore High Court in Niranjan Nath v. Afzal Hussain (A.I.R. 1916 Lahore 245) and it was ruled that when a court passes a purely formal order recognising the abatement which is a fait accompli, such an order, though virtually disposing of the suit, does not adjudicate upon any rights and cannot be treated as a decree. The order which we have to consider in the present case is also a purely formal order of the type of order referred to in Niranjan Nath v. Afzal Hussain (A.I.R. 1916 Lahore 245). As already pointed out the order in A. S. No. 328 of 1110 which was the appeal against the decree in the suit merely stated that' "the appeal has abated and is dismissed. No order as to costs." It is obvious that this was mere form 1 order judicially recognising and giving effect to the abatement which had already taken place. This order can in no sese be said to be a decree. It cannot also be said that the decree under appeal has become merged in this order. There is nothing in this order which is capable of being put in execution. Gohur Bepari v. Ram Krishna Saha (A.I. R. 1927 Calcutta 760), Husain Azghar Ali v. Ramditta Mal (1933 P. C. 68 = I. L. R. 60 Calcutta. 662), Murli Dhar v. Mahabir Singh (A.I.R. 1941 Allahabad 371), Kunjithapatham v. Saraswathi Ammal (A.I.R. 1941 Madras 671) and Subramonia Iyen v. Ananda Row (18 Travancore Law Reports 119) F. B.) are also cases where the appeal against the original court's decree had abated. In all these cases the first court's decree was deemed to remain in tact and was allowed to be executed for the reason that the abatement of the appeal had not resulted in any decree of the appellate court and that it cannot be said that the decree under appeal had become merged in or was superseded by any decree in the appeal. 8. 8. Since the disposal of the appeal A. S. No. 328 of 1110 was only by a formal order which merely recognised and gave effect to the fact that the appeal had abated and since that order does not amount to a decree it cannot be said that the appellate court has passed any decree in the case. The question of registration of any appellate decree does not therefore arise for consideration in this case. The only decree that is capable of execution is the decree of the trial court which has been left in tact. That decree has been duly registered as required by law and there is no dispute regarding that fact. Thus the period of limitation for the execution of that decree is six years, as provided for in column 2 of Article 182. Since there has been an appeal against that decree and the final order disposing of that appeal was passed only on 4-12-1115, the said period of six years has to be computed from that date. It follows, therefore, that the execution petition filed on 4-12-1121 is within time. The finding of the lower court that the decree-holder is entitled to proceed with the execution of the decree on the basis of that execution petition after impleading the legal representatives of the first defendant and that there is no bar of limitation for such execution is accordingly confirmed, and to that extent the appeal is dismissed. But in view of the fact that the lower court has failed to consider the other contentions raised by the 7th defendant-appellant his prayer that the case has to be remanded to the court below for disposal of those objections also after due enquiry, before proceeding with the execution of the decree has to be allowed. 9. The result is, that this appeal is allowed only to the extent indicated above and is dismissed in other respects. The lower court is directed to consider and dispose of all the objections raised by the 7th defendant, excepting the one on the ground of limitation, which has already been decided against the appellant, before proceeding with the execution of the decree in the case. In the circumstances of this case we make no order as the costs of this appeal. Partly allowed.