Norris and Gordon, JJ.
1. The material facts of this case, so far as it is necessary to set them out for the purposes of this judgment, are as follows : On the 19th December 1881 the respondent obtained a decree for Rs. 51,242 and costs against the appellant on the Original Side of this Court. On the 11th December 1893 the respondent applied under Section 223 of the Civil Procedure Code for 'transmission of a certified copy of the decree to the District Judge's Court of the 24-Pergunnahs, with a certificate that no portion of the decree has been satisfied by execution within the jurisdiction of this Hon'ble Court,' and alleging that 'the said defendant has no property within the jurisdiction of this Hon'ble Court, but has property in the 24-Pergunnahs.' This application was headed as follows: 'The plaintiffs have obtained a decree in the case mentioned below, and the surviving plaintiff craving to have execution in accordance with Act XIV of 1882, he submits in a tabular form the following particulars in support of his application.' Upon this application Sale, J., made the following order: 'Let notice issue (returnable four days after service) under Section 248 (a) of the Civil Procedure Code.' On the 19th December 1893 the learned Judge made the following order: 'Let a certified copy issue, no cause being shewn.' The certified copy of the decree was in due course transmitted to the Court of the District Judge of the 24-Pergunnahs, and on the 1st March 1894 the respondent applied in that Court for execution of the decree by the attachment and sale of certain immoveable property.
2. On the 1st of June 1894 the appellant filed objections to the execution of the decree, alleging amongst other things that the execution was barred by limitation. On the 4th of August 1894 the Subordinate Judge, after hearing arguments on both sides, overruled the appellant's objections and directed execution to issue. The Subordinate Judge held that the application of 11th December 1898 was an application for execution of the decree, and that the order of Sale, J., of the 19th December 1893, 'Let a certified copy issue, no cause being shown,' was an order for the execution of the decree made on the application for execution; and on the authority of the case of Ashootosh Dutt v. Doorga, Churn Chatterjee I.L.R. 6 Cal. 504 further held that such an order operated as a revivor of the decree under Article 180, Schedule II of the Limitation Act (XV of 1877). In appeal it is contended before us that this view is erroneous.
3. We are of opinion that the application of the 11th December 1893 was not an application for execution, and we are also of opinion that the order of the 19th December 1893 was not an order for execution. The application of the 11th December 1893 no doubt purports to be made under Section 248 (a) of the Code of Civil Procedure, and that section provides that the Court shall issue a notice to the party against whom execution is applied for, requiring him to show cause, within a period to be fixed by the Court, why the decree should not be executed against him when more than one year has elapsed between the date of the decree and the application for its execution. In oar opinion there was no necessity for the issue of a notice under Section 248. Upon an application to transfer the decree under Section 223, execution could not have been obtained upon the order of the 19th December 1893. The subsequent application to the Court to which the certified copy of the decree was transmitted was necessary, and this we think was the first application for execution. In the case of Ashootosh Dutt v. Dosrga Churn Chatterjee I.L.R. 6 Cal. 504 the order relied upon by White, J., as having the effect of reviving the decree within the meaning of Article 180 of Schedule II of the Limitation Act, was an order for execution by the arrest of the judgment-debtor, and was made by the Court which passed the decree. The view we take is confirmed by a decision in the case of Nilmony Singh Deo v. Biressur Banerjee I.L.R. 16 Cal. 744.
4. The appeal must be allowed with costs.