1. The matter is one of limitation arising in execution of a decree. There was a decree obtained against the appellant by the Sivaganga Estate on 7th June 1920. In execution of the decree the estate after arresting the appellant collected Rs. 682-5-6 on 29th October 1920. The appellant appealed and on 13th November 1923 the decree in execution of which money had been collected was reversed. The decree-holder then deposited a certain amount in Court and on 21st October 1924, intimation was given by the Revenue Divisional Officer to the appellant that the money had been deposited. The appellant received it on 31st October 1924 and on 9th July 1927, filed the present petition claiming interest by way of restitution on the amount during the time it was in the hands of the other side until the amount was paid to him by the Revenue Divisional Officer. The Revenue Divisional Officer dismissed the petition on the ground that it was not presented within three years from the date of the remittance of the principal amount. This apparently is an error because the principal amount was remitted on 26th October 1924 and the petition was within three years of this date.
2. On appeal the District Judge con firmed the order on the ground that the application of the defendant was not one for the execution of the decree within the meaning of Article 182, Lim. Act, and that such amount due to the defendant by way of interest had not been stated in the decree and had to be determined separately. An application for payment of interest could not therefore be regarded as an application for execution of the decree. Before me it is argued that this reasoning is wrong: vide Somasundaram v. Chockkalinga (1917) 40 Mad 780 and Unnamalai Ammal v. Arunachalam (1917) 42 IC 530. In the latter case it was held that the application is governed by Article 182 and not by Article 181.
3. It has however to be seen whether this application, execution petition, is in time. The decree was on 13th November 1923, and the decree is in the petitioner's favour. He has to show that he took a step-in-aid of execution within three years. It has been argued before the learned District Judge that he made an application to the Sub-Treasury to draw the money. The letter of the Revenue Divisional Officer was dated 21st October 1924, and the application to draw the money was, it is argued, a step-in-aid of execution. As observed above the learned District Judge dismissed the application on other grounds. I therefore made a reference to the Revenue Divisional Officer to see whether there had been any such application. It appears that there was no application apart from the present execution petition. But it has been argued that the money would not have been paid out without an application and therefore an application may be presumed. The letter of intimation by the Revenue Divisional Officer was on 21st October 1924, and runs as follows:
Please take notice that a sum of Rs. 781-6-8 has been deposited in the Sivaganga Sub-Treasury in satisfaction of the decree in A.S. No 796 of 1920 on the file of the District Court at Ramnad at Madura on Special Deputy Collector's S.S. No. 1862 of 1918 and the same has been ordered to be paid to you by the Sub-Treasury Officer, Sivaganga, in my R.O.C.A. No. 3-2013-24, dated 27th September 1924.
4. Now the intimation should have taken some such form as this:
To the Sub-Treasury Officer. Pay such and such sum to Ramanathan Chettiar due to him in satisfaction of the decree in A.S. No. 96 of 1920.
5. There is nothing to show that any application by the petitioner was necessary. In Courts such payment orders are made by cheques drawn on the treasury. Sabapathy Chetty v. Shunmugappa Chetty AIR 1924 Mad 638 was relied on to show that a mere payment out by Court was a step-in-aid of execution, but two things have got to be observed in that case. In that case the learned Judge was dealing with Article 183 where expressly payment out establishes revivor. Secondly as a matter of fact, there was an application in that case. On p. 455 (46 M.L.J.) the Judge says:
As regards Article 182 the eases in Venkatarayalu v. Narasimha (1878) 2 Mad 174, Kerala, Varma Valia Rajah v. Shankaran (1893) 16 Mad 452, Koormayya v. Krishnawa Naidu (1894) 17 Mad 165, Bapu Chand v. Mugutrao (1898) 22 Bom. 340 and Thangi Sehttith v. Duja Shetti AIR 1919 Mad 929, take the view that payment out of a sum from Court is a step-in-aid of execution under Article 182, Clause 5. But Hem Chunder v. Broji Soonduri (1882) 8 Cal 89, Fazal Imam v. Metha Singh (1884) 10 Cal 549, and other cases take the contrary view.
6. The first part of this is put too widely. In Koormayya v. Krishnama Naidu (1894) 17 Mad 165 there was some report from the sheristadar under a subsequent order from the Judge. Their Lordships held that it must be inferred from this document that there was a request for the payment of the money realized in satisfaction of the decree. Any such request is sufficient to keep the decree alive. It was distinctly held therefore that there was an application. Here there is nothing to show, that in connexion with the intimation received from the Revenue Divisional Officer, there was any application either before or after by the petitioner so that such application might be construed as a step-in-aid of execution. In all the other cases quoted there was an application. Therefore I must hold that the mere drawing out of the money is not a step-in-aid of execution. If so the present application is time-barred and the appeal fails and is dismissed with costs.