M.S. Menon, J.@mdashThe only question that arises, for consideration in this second appeal is whether the Respondent''s application for execution of the decree in O.S. No. 403 of 1117 of the District Munsiffs Court, Ernakulam, is barred by limitation or not. The answer depends entirely on the reply to the further question as to whether the time available should be calculated from the date of the dismissal of the second appeal from the said decree, S.A. If 103 of 1121, on 14-11-1121 or whether it has to be calculated from the date of the decree of the Court of first appeal namely, 26-1-1121. If 14-11-1121 forms the material date, it is agreed, that the present execution application is not barred by limitation and that the second appeal will have to be dismissed.
2. The second Appeal No. 103 of 1121, was dismissed on 14-11-1121 without issuing notice on the ground that it involved only a concurrent finding of fact and the contention of the Appellant before me is that the date of such a dismissal cannot be taken into account for the purpose of calculating the period of limitation.
3. An identical question came up for decision in ''13 Cochin 218 (A)'', and it was held that even where a second appeal is dismissed u/s 535, CPC the date of dismissal is the date of, "the final decree or order" of the appellate Court for the purpose of Article 163 of the Limitation Act and that an application for execution presented within three years from the date of such a dismissal would not be barred even though on the date of the application more than three years had elapsed from the date of the decree of the first appellate Court, That decision was approved in, ''32 Cochin 536 (B)'', and summarised as follows:
This Court has held in ''13 Cochin 218 (A)'', that " even where an appeal is summarily dismissed without notice to the other side u/s 535 of the old CPC corresponding to Order 41, Rule 11 of the new Code of Civil Procedure, time for execution runs anew from the date of the appellate decree.
4. I see no reason to adopt a different view. It follows that the conclusion of the Courts below that the present execution application is not barred by limitation is correct and that this second appeal should be dismissed.
5. I dismiss the second appeal with costs.
