Pakenham Walsh, J.
1. This appeal concerns the question as to whether an execution petition filed on 15th December, 1923, is time barred or not. The facts are fully stated in the order of the lower appellate Court and the question of limitation turns on two points:
(1) Was the application of the decree-holder's pleader on 16th December, 1920, for time to put in an application for substituted service a step-in-aid of the execution petition then pending, E.P. No. 1006 of 1920?
(2) Had that petition been improperly dismissed on 23rd December, 1920, and was it therefore to be regarded as still pending when the present execution petition was put in on 15th December, 1923?
2. The learned District Judge with some hesitation finds the first point in the decree-holder's favour but thinks that the second, which he finds in the affirmative, is a stronger ground. Against his finding that the execution petition is not time barred this appeal is filed.
3. The decree was a mortgage one for sale. The decree-holder filed E.P. No. 1006 of 1920 on 14th October, 1920. Notice was ordered returnable on 15th November, 1920. Service not having been effected, fresh notice was ordered for 16th December, 1920. The notice was taken out for the same address, Puduvayal, to which the first notice had been taken out, and was returned with the intimation that the judgment-debtor had gone to Rangoon. From the deposition of the pleader who appeared for the decree-holder, which has been accepted by the lower appellate Court as correct, what happened on that date was this, that the pleader asked for time to apply for substituted service but the Court ordered fresh notice for 17th January, 1921.
4. Batta was ordered to be paid and not having been paid, the petition was dismissed, statedly on this ground, on 23rd December, 1920.
5. The entry in the printed papers that this dismissal was on 17th January, 1921, is an error and the order of the lower appellate Court has proceeded on the correct fact that it was dismissed on 23rd December, 1920. It seems to be well settled now, so far as Madras is concerned, that a step-in-aid of execution for the purposes of Article 182 of the Limitation Act must fulfil two conditions: (1) The step is one which the Court has to take, and (2) the Court must be asked to take it, Rangachariar v. Subramania Chetty (1920) 12 L.W. 9 . This was approved of in Krishna Pattar v. Seetharama Pattar : AIR1926Mad1178 and was followed in Ramaswami v. Veeranna : (1927)53MLJ766 and the same principles were followed in Raghava Aiyangar v. Natesa Chettiar 1931 M.W.N. 413. The same view was taken in Parthasarathi Chetti v. Abdul Rahiman Sahib (1923) 18 L.W. 109. In Srimath Deivasikamani Annamalai Desikar v. Raju Pillai : AIR1930Mad995 it was held that where the decree-holder asks for time to do something which he himself has to do this cannot be a step-in-aid. See also Umed Ali v. Abdul Karim (1908) 8 C.L.J. 193.
6. The respondent relies on Abdul Kader Rowther v. Krishnan Malaval Nair I.L.R.(1913) 38 Mad. 695 : 26 M.L.J. 433 which was followed in Ravur Munusami Naidu v. Pandala Muthiah Naidu (1916) 33 I.C. 79 but this was expressly dissented from in Masilamani Mudaliar v. Sethuswami Aiyar I.L.R.(1916) 41 mad. 251 : 33 M.L.J. 219 by Ayling, J. It is argued before me that it was not necessary for the purpose of the latter case for him to dissent from Abdul Kader Rowther v. Krishnan Malaval Nair I.L.R.(1913) 38 Mad. 695 : 26 M.L.J. 433 but whether that is so or not the two principles laid down above and accepted would clearly render the decision in Abdul Kader Rowther v. Krishnan Malaval Nair I.L.R.(1913) 38 Mad. 695 : 26 M.L.J. 433 incorrect and it is clear that Abdul Kader Rowther v. Krishnan Malaval Nair I.L.R.(1913) 38 Mad. 695 : 26 M.L.J. 433 has not been followed in the later decisions of this Court. Mowar Narsingh Dayal Singh v. Mowar Kali Charan Singh 14 C.W.N. 486 is no doubt an authority in respondent's favour but in the light of the rulings of this High Court I am not prepared to follow it. Sheo Shankar Lal v. Radhe Shiam (1919) 50 I.C. 278 is not quite parallel and in any case is opposed to the principle laid down in Srimath Deivasikamani Annamalai Desikar v. Raju Pillai : AIR1930Mad995 . It was argued for the respondent that the decree-holder could not apply for substituted service until he knew the result of the return, but there is nothing to show that he could not have put in such an application on the day of the return, 16th December, 1920, when he came to know of it. I do not agree with the view of the learned District Judge that a failure to make an application for substituted service at once might have entailed the dismissal of the petition for want of diligence as regards the correct address of the judgment-debtor. There had been only one previous notice and there had been no order that correct address was to be furnished as that given was wrong. The Court could not under these circumstances have dismissed the petition merely because the judgment-debtor was absent from home on the second occasion when notice was taken to him. But assuming that the Court might have dismissed it, it has not been shown why the decree-holder could not have put in his petition for substituted service on the 16th itself when he learned that the notice had not been served.
7. One case Sankaranarayana Pillai v. Thangamma : (1921)41MLJ374 has been quoted for the respondent where an application by a decree-holder in a redemption suit to extend the time for payment of the mortgage decree was held to be a step-in-aid. It is a very nice point whether such an application is one in aid of execution, but it is certainly arguable that it is so, because the redemption decree-holder improves his position under the decree by getting further time to redeem. This case has been referred to in Srimath Deivasikamani Annamalai Desikar v. Raju Pillai : AIR1930Mad995 and some doubt cast on it. It is however clearly no authority for holding that an application to grant time to put in a petition for substituted service in a case like the present is anything which advances execution or is a step-in-aid. I must hold on the recent authorities of this Court that the application for time to put in a petition for substituted service was not a step-in-aid so as to save limitation.
8. The second ground on which the present execution petition has been found to be in time is one which was not taken at all in the petition - certainly not in its present form - and has really been made up for the decree-holder in the lower appellate Court on facts which are directly contrary to those which the decree-holder himself stated in his execution petition.
9. Taking first the broad argument that the execution petition was wrongly dismissed the grounds for exemption from limitation should have been expressly pleaded under Order 7, Rule 6, Civil Procedure Code, in the petition. Vide Jogeshwar Roy v. Raj Narain Mitter I.L.R.(1903) 31 Cal. 195. It is doubtful whether such a ground was pleaded at all in the petition. The decree-holder said in his execution petition 'Fresh notice was ordered on 16th December, 1920 and it was posted to 17th January, 1921, when the notices were returned stating that the defendant went away to Kualalampur and thus the application came to an end'.
10. There is a further allusion to the point in the prayer at the end. As there was some dispute as to whether the printed translation of this part was correct, I had a fresh translation made. The relevant part runs:
Although more than three years have passed since the date of filing of the previous petition, inasmuch as it was pending disposal, the notice returnable date being up to 16th December, 1920, inasmuch as fresh notice was ordered on the said date and inasmuch as the defendant was living for about 2 or 3 years at Kualalampur in the Malay States (outside British India), this petition is not barred under law and Limitation Act.
11. Assuming that these two statements amount to an assertion that the petition was wrongly dismissed and was therefore to be regarded as still pending we have to see what was the wrongful dismissal put forward by the decree-holder. His statement that the notice ordered on 16th December, 1920, was returned unserved on 17th January, 1921, on which date the petition was dismissed owing to the want of service clearly implies that batta was paid by the decree-holder, else the notice would never have been sent at all. The wrongful dismissal if any therefore pleaded was that the Court had no right to dismiss the petition on 17th January, 1921, for the mere reason that the decree-holder was found absent from the address given. There was according to this pleading no default whatsoever on the part of the decree-holder in paying batta or taking any other necessary action. That was the case, if any, which the judgment-debtor had to meet when he asserted the obvious bar of limitation. Now it is admitted that these facts are entirely incorrect and that the petition was in fact dismissed on 23rd December, 1920, for want of payment of batta, which had not been paid.
12. The decree-holder's case of wrongful dismissal having been proved to be totally false, the lower appellate Court has either set up for him, or allowed to be set up, a case which he did riot plead, and which is entirely at variance with the case which he did plead. The learned District Judge holds that the dismissal of the execution petition on 23rd December, 1920, was illegal because no notice was given to the decree-holder that it would be dismissed on that day and no time had been fixed within which batta had to be paid. In Venkatappa v. Nanjappa (1916) 4 L.W. 112 it was held that dismissal for default of payment of batta is a correct dismissal and Chalavadi Kotiah v. Poloori Alimelammah I.L.R.(1907) 31 Mad. 71 : 18 M.L.J. 46 was there distinguished. It is true that in that case a date had been fixed for the payment. I do not think it is necessary to discuss the question whether, if the decree-holder had pleaded that he had failed to pay the batta in time because he was not given a date, and that therefore the dismissal of 23rd December, 1920, was improper, such an argument would have been good to save limitation. But the fact is that, if he be taken to have pleaded a wrongful dismissal of a petition at all, it was not only not on these grounds but on grounds totally contradictory of any such case. He stated inferentially that he had paid batta and that the wrongful dismissal was on 17th January, 1921, for no other reason than that the judgment-debtor was not found at his address. It was not open to raise for him in argument in the lower appellate Court a case founded on totally different and contradictory facts which the judgment-debtor had no chance of meeting.
13. As a matter of fact, on the decree-holder's version as given in his execution petition, there is no explanation for his not turning up on 17th January, 1921, which he does not appear to have done and for not taking some further steps then. His learned advocate before me suggested that on account of the dismissal of the petition on 23rd December, 1920, the decree-holder had got tired of it and took no further interest in it, but on his clients showing he knew nothing at all, even when he put in the present petition of the dismissal on 23rd December, 1920 and was under the impression that the petition had been dismissed on 17th January, 1921.
14. The cases where petitions are dismissed for statistical purposes have no application here. The dismissal in this case was for non-payment of batta. The second ground therefore, on which the appellate Court mainly relied in holding that the petition was not barred by limitation was, in my opinion, not open to the decree-holder to take, as it was a new case which contradicted on facts the case he had already set up.
15. In the result I must hold that the petition was barred by limitation. The appeal is allowed with costs throughout and the present execution petition must be dismissed with costs.