1. A decree-holder filed within limitation an application for execution on 25th July 1927, but he allowed it to be dismissed for default. In April 1928 contention arose in Court between the judgment-debtor and the decree-holder in regard to whether by a payment which the judgment-debtor was making the decree was discharged in full or not, and in the course of it the decree-holder had to make a statement, and in the course of that statement he was asked how it was that if he had not bean paid anything he had not proceeded with his application for execution of 25th July. He explained his allowing that application to be dismissed for default by saying that he had never really intended it as an application for execution, but had only filed it in order to save limitation. This was a dangerous statement for him to make, as the reported decisions of this Court then stood, for Banerji, J., and myself had held that the mala fides of an application for execution could be considered, and if found would deprive the application of any effect in saving limitation.
2. On 15th March 1929 a fresh application for execution was filed and the judgment-debtor objected that it was barred by limitation. The learned Judge of the Court of Small Causes accepted this contention, holding that, as the decree-holder had with his own lips in the statement to which I have referred admitted that the application for execution was not put in with any intention to execute it, but had been put in solely for the purpose of saving limitation, the application could not be held to save limitation. I am informed that the learned Judge did have drawn to his attention the Pull Bench decision in Kayasth Co. Ltd. v. Sitaram : AIR1929All625 . He does not mention that case or the decision by Banerji, J., and myself which that Full Bench overruled. Ha applied the test of bona fides or mala fides exactly as it would have been applied if the decision of Banerji, J., and myself had still stood. There is no explanation of why he did not follow the Full Bench decision, but it may be because that decision dealt with a ease where the mala fides had to be inferred from the facts of the case, and it is true that Sulaiman in his judgment in that case said that the matter might be different where the decree-holder admitted that his application was not intended as an application for execution.
3. In principle however there is in my opinion no difference between the two cases. In the one case the inference of what has been described as mala fides in the application for execution is drawn from the facts themselves; in the other case it arises from the decree-holder's own admission. In principle there is no difference. In practice too, if an attempt were made to give effect to such a difference, it would only mean that a decree-holder would never admit in future that his application was not intended to secure execution, but only to save limitation. The present case therefore must also be governed by the decision of the Full Bench, and allowing this application with costs, I set aside the order of the learned Judge of the Court of Small Causes and direct that the case be returned to him for disposal according to law.