W. Comer Petheram, C.J.
1. This is an appeal from an order of Mr. Justice HILL rejecting an application by the appellant, the defendant in the original suit, for the refund of the amount of the costs paid to the Sheriff of Calcutta, or that the plaintiff's costs in the suit in which the execution took place should be taxed. The learned Judge rejected the application on the ground that it was made more than three years from the time when the right to make it accrued, and that it was within the provisions of the Indian Limitation Act, Section 4, and Clause 178 of the second schedule. It is not disputed that the application is within these provisions, and the only question is whether it was made more than three years from the time when the right to make it accrued.
2. The money in question was paid or deposited with the Sheriff on the 27th of November 1889, and if the 27th, the day on which the payment was made, is excluded under Section 12 of the Act, and the 27th of November 1892 under Section 5 as being a Sunday, the last day for making the application was Monday, the 28th November 1892. It appears that on that day the appellant took out a summons calling on the respondent to attend the Judge in chambers on the 5th of December on the hearing of the application for the refund of the money, or to tax the bill, that on the same day he caused two Court stamps, one of the value of Rs. 2, and one of the value of Rs. 5, to be affixed to the summons, and on the same day obtained the signature of the Registrar to it. On its face it bears date the 28th of November 1892, and the only question we have to consider is whether the application was made within the meaning of the Limitation Act on the day on which the summons was signed by the Registrar, and on which it bears date or on the day when the matter came before the Judge, i.e., on the 5th December, a day which was more than three years from the day when the right to apply accrued. We think that the application was not made until the 5th of December and that the Judge was right in rejecting the application as barred by limitation. The summons to attend the hearing of the application is the act of the applicant only and is merely a notice, signed by the Registrar at his request, that the application will be made on the day mentioned, i.e., December 5th, and is not the act of the Court receiving or taking cognisance of the application as would perhaps be the case if it were a rule nisi to show cause issued by the Court after hearing the statement of the applicant. We have caused enquiries to be made in the office and find that the Rs. 2 stamp represents the fee for filing the summons which in ordinary course would not have been done until December 5th, when it came on for hearing, and the Rs. 5 stamp represents the fee for the hearing and the order, and that no fee is payable for the issue of the summons or for the signature of the Registrar, Under these circumstances we think that no application was made to the Court until the application of December 5th which was made in pursuance of the notice given by the summons, and as that was more than three years from the time when the right to make it accrued the learned Judge was right in rejecting the application, and this appeal must be dismissed with costs on scale No. 2.