1. On the 3rd of October 1899, an application was made to execute the decree in O.S. No. 260 of 1893, by attachment and sale of certain immoveable property mentioned in the application. An order was obtained on the 7th October 1899. The judgment-debtor objected that the decree had been satisfied, but that objection was disallowed on the 31st October. The judgment-debtor appealed to the District Judge and obtained an order for stay of execution pending the hearing of the appeal. Upon this the District Munsif, on the 15th December 1899, passed the following order on the execution petition: 'Execution ordered to be stayed. Petition dismissed.' On the same day, as a diary entry shews, the immoveable property was attached. The District Judge disposed of the appeal of the 20th July 1900, remanding the matter for further enquiry, and on the 25th January 1901, the District Munsif decided that the decree had been satisfied before the attachment. On nth December 1901, the District Judge reversed this order, and on the 29th of October 1903, his decision was confirmed by the High Court.
2. The execution petition now under consideration was presented on the 9th July 1905; it asks for a notice under Section 248 of the Civil Procedure Code for the attachment of' certain immoveable property, for the issue of a proclamation of sale of the property already attached, for the attachment of moveables, and for the arrest of the defendants.
3. The question for our decision is whether this petition is barred by limitation as held by the District Munsif, or not so barred as held by the District Judge in appeal from him. There is no doubt that when on the nth December 1901, the District Judge reversed the District Munsif's order declaring the decree already satisfied, it was open to the decree-holder to proceed with the execution, and the fact that an appeal was preferred to the High Court presented no obstacle, no order for stay of execution having been obtained. It is impossible, therefore, to accede to the contention that limitation commences to run from the decree of the High Court, and the petition of the 7th July 1905 is clearly barred so far as it is a fresh application for execution, that is to say, so far as it asks for attachment of property not proceeded against in proceedings instituted by the application of the 3rd October 1899. In so far as it asks for a proclamation of the sale of the property already attached in pursuance of the petition of 1899, the case is different. For the appellant it is contended that the order of the 15th December 1899 dismissing the petition closed the proceedings, that the attachment closed with them, and the subsequent' application is throughout a new petition for execution. If that be the true position, the respondents must fail not merely on the ground of limitation but also because they do not ask for attachment of the property previously attached. But that is not the position. There is nothing to show that the order of the 15th December 1899 was passed after notice to either party. It is not stated in the order that either party was heard, and the diary entry does not indicate any hearing on the 15th December. It has been held in Sasivarna Tevar v. Arulanandam Pillai I.L.R. (1897) M. 261 that the Court has no legal authority to dismiss a petition for execution simply because execution has been stayed, but if that is so, the order of dismissal is not necessarily ineffective to dispose of the proceedings. If wrong, an appeal might lie to stet it right. But here, the order being made without notice, and in the absence of both parties, cannot be regarded as an order between the parties at all. It amounts to no more than a direction to officers of the Court to remove the proceedings from the pending list. Cf. the case of Narayan v. Sono I.L.R. (1890) B. 345. Indeed it appears not improbable that this is the view taken of the matter by the District Munsif himself, for the record contains no indication of any order to remove the attachment or for costs. However that be, the order had not the effect of closing the proceedings, and they must be considered to have been still pending when the application was made in 1905.
4. The question then arises, whether even in that view it was not necessary in order to save limitation to present the application within 3 years of the District Judge's order, dated the nth December 1901. A number of cases have been cited in the bar in which applications similar to that in question have been treated as applications to revive or continue earlier proceedings, and in some of these cases, Article 178 of Schedule II of the Limitation Act is referred to as applicable to the matter, while in others no reference is made to any particular provisions of law. The cases establish the position that if the execution has been stopped by the interposition of some obstacle, the proceedings may be revived or 'continued' by an application made within 3 years of the removal of the obstruction, and though in some cases, notably in the decision of the Privy Council in Qamar-ud-din Ahmad v. Jawahir Lal I.L.R. (1905) A. 334 the application is referred to as reviving a pending execution, it was not necessary in any of them to decide whether Article 178 ought to be applied to the case. It is not clear what course the proceeding took in Narayan v. Sono I.L.R. (1890) C 345 whether execution was stayed pending the decision of the High Court in. S.A. No. 133 of 1892 or whether the Court of the First Appeal replaced the obstacle removed by the Court of First Instance. It seems to have been assumed on both sides that the obstacle was not removed until the date of the decision of the High Court and the petition under the consideration of the learned Judges was within 3 years from that date. No doubt, there is a remark in the judgment to the effect that there was no bar under Article 178, because the application was not 'a fresh application for execution;' but it is quite clear, as the report stands, what is the precise import of that remark, for, if the application is a fresh application for execution, it would prima facie be governed by Article 179.
5. There are, however, cases not cited before us from which we may derive the rule that Article 178 ought not to be applied when the Court is asked to do something which it is bound to do see Kylasa Goundan v. Ramasami Ayyan I.L.R. (1881) M. 172 and Vithal Fanardan v Vithojirav Putlajirav I.L.R. (1882) B. 586 and that so long as proceedings are pending, limitation will not begin to run against an applicant vide Kedarnath Dutt v. Hurrachand Dutt I.L.R. (1882) C. 420. In Venkatappiah v. Jagannadha Rao (1901) 12 M.L.J. 24 an application made in 1898 was held to be made in proceedings instituted in 1886 still undisposed of in 1898 and so not barred, and that case is also an authority for the rule that, if in an execution petition a decree-holder asks for sale as well as attachment of the property of the judgment-debtor, a subsequent application for sale of the same property will not be barred by Article 178, though not made within 3 years of the attachment. The decision in Foobraj Singh v. Buhooria Alumbasee Koer (1880) 7 C.L.R. 424 seems to proceed on the assumption that in that case a separate application for sale was necessary; the question is not discussed.
6. It may be somewhat difficult to reconcile the view taken in Kylasa Goundan v. Ramasami Ayyan I.L.R. (1881) M. 172 with that taken in Pichaippa Achari v. Poojali Seenan I.L.R. (1905) M. 557 where it was held that an application for execution not as such in accordance with law, will suffice to save limitation if it contains an application for the issue of a notice under Section 248 of the Civil Procedure Code. The Court is by. Section 248 directed to issue a notice and by Section 316 to order a certificate, and in neither case is any application required by the Code. If then an application for a notice is an application within the meaning of Article 179 it is not very easy to see why an application for a certificate is an application within the meaning of Article 178.
7. Possibly we are on safer ground if we hold with Wilson J. in Kedarnath Dutt v. Harrachand Dutt I.L.R. (1882) C. 420 that so long as the proceedings initiated by the decree-holder are pending, his right to apply for their continuance occurs from day to day, (i.e., on every day on which the Court does not suo motu continue them). The right to apply will then not be barred till 3 years have elapsed after the proceedings have ceased to be pending.
10. Whichever be the better view, the result is the same, and the petition under our consideration is not barred in so far as it asks for sale of the property attached under the petition of the 3rd October, 1899.
8. The decree of the District Judge must be modified accordingly. Execution must proceed only against the immoveable property described in the Execution Petition of the 3rd October 1899 (E.P. No. 1086 of 1899). The parties will bear their own costs throughont.