THAKUR RAM Vs. KATWARU RAM
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Banerji, J -
(1.) This appeal arises out of the execution of a decree passed under Section 88 of the Transfer of Property Act on the 19 November 1890. An order absolute was made under Section 89 on the 11 September 1894. The first application for execution was presented on the 29 November 1895. The present application was made on the 7 December 1898. The question is, whether the application last mentioned was within time. The Lower Appellate Court has held that it was barred by limitation, and it is contended that this decision is incorrect. The learned vakil for the appellant relies on the fact that on the 24 December 1895, process fee was deposited for the issue of a notice for the purpose of an inquiry under Section 287 of the Code, and also upon the fact that on the 8 July 1896, costs for the issue of a proclamation of sale were deposited. He contends that limitation should be computed from these dates, and that as the present application was made within three years from both of these dates, it was not time-barred.
(2.) Under Clause 4 of Art. 179 of the second Schedule to the Indian Limitation Act, 1877, the three years limitation must be computed from the date of applying in accordance with law for execution of the decree, or to take some step in aid of execution. It is clear that under that article a fresh start for the computation of limitation is allowed, not from the date of taking a step in aid of execution, but from the date of applying to take some step in aid of execution. The record of this case shows that no application, either oral or in writing, was made when the deposit of process fee and of costs of sale was made on the 24 December 1895, and the 8 July 1896. The mere fact of the making of the deposit cannot amount to the making of an application within the meaning of Art. 179(4). The learned vakil for the appellant relies on the ruling of this Court in Barmha Nand v. Sarbiskwara Nand Weekly Notes 1883 p. 247. In that case what the learned Judge said was that "the decree-holder applied within the period of limitation for steps to be taken in execution when he deposited the necessary fees for notices and advertisements of sale." From this statement it seems that some application was made in that case. In the recent case of Har Sahai V/s. Sham Lal Weekly Notes 1900 p. 88, it was held that payment into Court of postage for the purpose of getting a record forwarded to another Court in a case where the transfer of a decree for execution had been ordered under Section 223 of the Civil P. C. did not amount to an application to the Court to take a step in aid of execution. In Dwarkanath Appaji V/s. Anandrao Ramchandra (1894) I.L.R. 20 Bom. 179, it was held that the mere deposit of process fee for the service of notice was not an application within the meaning of Art. 179, Clause (4), which could save the operation of limitation. The case of Radha Prasad Singh V/s. Sunder Lall (1883) I.L.R. 9 Cal. 644, is no doubt an authority in favour of the appellant's contention, but in that case the learned Judges overlooked the fact that under Clause (4) of Art. 179 there must be an application to take a step in aid of execution in order to save the operation of limitation, and that the mere fact of a step being taken in aid of execution cannot have that effect. I am therefore unable to agree with the ruling last mentioned. As in this case the decree-holder did not apply for execution or to take a step in aid of execution within three years before the date of his present application for execution, that application was time-barred, and this appeal must fail: it is dismissed with costs.
(3.) I may observe that the Lower Appellate Court was wrong in stating that notice under Section 248 was issued on the 24 December 1895. If that date had been correct the present application might have been within time; but, as a matter of fact, the order for the issue of notice was made on the 30 November 1895, and the notice was actually issued on the seco December, 1895, and the present application was made beyond three years from both these dates.;
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