1. The question for decision in this appeal is whether the appellants decree-holders application for execution is time barred. The application in question was presented on 10th January 1923. The last previous application was made on 31st October 1919, considerably more than three years earlier. The previous application was for the arrest of the judgment-debtor. The appellants rely on the fact that when the judgment-debtor was brought before the Court on 17th November 1919 he gave security and applied to be declared an insolvent. As the law stood the Court was obliged to release him from arrest under Section 55(4), Civil Procedure Code. He was released and made an application to the Insolvency Court. While the insolvency proceedings were pending the execution application was struck off. This was on 18th December 1919. On 11th February, 1920, the application to be declared an insolvent was finally rejected. In order to bring their present application within time the decree-holders require to deduct the whole period during which the insolvency proceedings were pending and this is what they claim to do under Section 15 of the Limitation Act. The learned District Judge has rejected this plea on the ground that under the Provincial Insolvency Act of 1907, which was then in force, the mere presentation of an insolvency application does not prevent execution of the decree. If an order of adjudication was subsequently passed under Section 16 of the Act that adjudication would relate back to the date of the insolvency petition and would prevent any execution proceedings being taken except lay leave of the Court. In this case no order of adjudication was, ever made and, therefore, the creditor cannot take advantage of this provision. It has indeed been held in a Madras case that even the passing of an order of adjudication does not amount to a suspension of execution under Section 15 of the Limitation Act because after the adjudication execution proceedings could still be carried on by leave of the Insolvency Court. That is a much stronger case than the present one where no adjudication was made.
2. The appellants rely on the language of Section 55(4), Civil Procedure Code. Their learned Counsel argues that on the language of that clause it was not open to them to apply again for the arrest of the debtor so long as the insolvency application was still undetermined. He argues from this that until final orders were passed by the Insolvency Court execution of the decree must be deemed to have been stayed. It is difficult to reconcile this argument with the actual language of Section 15 of the Limitation Act. In the first place in order to bring Section 15 into operation it is necessary that execution shall have stayed by an injunction or order. In this case there was no injunction and no order staying the execution. If, however, this be a somewhat technical point the larger objection remains that execution of the decree was not stayed by the provisions of Section 55, Civil Procedure Code. The decree-holders may have been debarred from one particular mode of execution but it was still open to them to execute their decree in any other way, e.g., by attachment and sale of any moveable or immoveable property of the judgment debtor. In my opinion Section 15 of the Limitation Act does not apply. The learned Counsel for the appellants puts forward an alternative plea that his present application should be treated as being in continuation of the application of 31st October 1919. Seeing that the application in question was formally dismissed on 18th December 1919 there is no ground for accepting this plea either.
3. The appeal, therefore, fails and it is accordingly dismissed with costs.