1. This is an appeal from the District Judge allowing an execution petition on the ground that though dated more than three years after the last preceding application it is in effect a mere revival or continuation of it. In June 1892, the respondent had put in a petition which was dismissed, the petitioner being relegated to a regular suit to establish his right. He did not bring a suit, but in September 1892 put in a fresh application to execute. This was dismissed as he had not chosen to take the course suggested when his previous application had been dismissed. After this the respondent filed his suit to have his right established and that suit ended in his favour on the 18th March 1895. On the 3rd October 1895 more than three years after his last petition was dismissed, he put in the present application asking to have the former application of September 1892 revived or continued. Both the Courts held that this application was not barred because it was in effect a mere revival of the last previous application.
2. We think this decision is wrong. Had there been any reason for saying that the proper order on the hearing of the last application should have been one which could hold the decision in suspense pending the decision of the regular suit, it might well be that there would be some reason for saying that this application could be treated as an application to proceed with a pending application, but that is not the ease here. The only proper order that could have been made in the circumstances was an order absolutely dismissing the application inasmuch as the order that preceded it had relegated the petitioner to a regular suit which he had not chosen to bring. We cannot therefore view the decision as one suspending the application for execution, nor can we agree that, where an order finally and properly dismisses an application for execution, a fresh application for execution can be treated as a renewal of it, even though such application may contain apt words for the purpose. Moreover we know of no process by which an application, which has properly been dismissed, can be revived.
3. For these reasons, without going into the other contentions raised, we allow the appeal.
4. We reverse the order of the District Judge and restore that of the District Munsif. The respondent must pay the appellant's costs in this and the lower Appellate Court.