1. The present application for execution was made on the 4th of December 1880. The one immediately preceding was made on the 3rd of October 1877, consequently the present application is prima facie barred under Article 179, [q.v. supra 8 cal., 29.] Schedule ii, of the Limitation Act (XV of 1877). But it is contended by the vakeel on behalf of the judgment-creditor, that, under Section 19 of the Act, an acknowledgment of liability was made by the judgment-debtor on the 7th of December 1877, by virtue of which a new period of limitation has been given to his client starting from the latter date.
2. It appears that, upon the application of the 3rd of October 1877, an order for attachment was made, under which certain properties of the judgment-debtor were attached; and that, on the 7th of December in the same year, the judgment-debtor, through his vakeel, presented to the Court a petition, which, after setting out the facts relating to the attachment, prayed that the judgment-debtor might be permitted himself to sell or mortgage the property attached, and out of the proceeds so realized satisfy the amount of the decree. It also prayed that, in the meantime, execution might be postponed for one year. The Court did not grant a year's grace, but acceded so far to the prayer of the petition as to allow to the judgment-debtor three months' time within which he might endeavour to pay off the decree, by raising sufficient money through the medium of a private sale or mortgage.
3. We are of opinion that the petition did constitute an acknowledgment of liability in writing within the meaning of Section 19. It expressly admitted the debt under the decree to be due and the judgment-creditor's right to have execution; and even if there had been no express admission, we should have implied one from the fact that the judgment-debtor asked for leave to sell the attached properties by private sale for the purposes of the decree.
4. We also think that the application of the 4th December 1880 is an application in respect of a right, viz., the right to have execution of the decree, and that the acknowledgment of liability contained in the petition of the 7th of December 1877 was in respect of such right. The words 'application in respect of any property or right' were not in the previous Limitation Act. They are introduced for the first time into the one now in force, and clearly with the object of extending to the applications which are mentioned in Schedule ii the same privilege as was under the old Act and is also under the present Act accorded to suits.
5. It is contended that the acknowledgment in question has not been signed by an agent duly authorized by the judgment-debtor as required by Expln. II of Section 19. We think that it has. The vakeel who signed the petition for the judgment-debtor held a vakalutnama from him to represent him in the suit, and acted as his vakeel throughout the suit and execution-proceedings. Looking to the nature of the application of the 7th of December, and to the fact that it was substantially granted, we think there can be little doubt but that the judgment-debtor expressly authorized his vakeel to make it; but whether he did so or not, he must be taken to have ratified the act of his vakeel. The judgment-debtor having, in consequence of the success of the application, had the benefit of a suspension of the execution for three months in order that he might himself sell or mortgage the attached property, it does not lie in his mouth to dispute that the vakeel was his duly authorized agent for the purpose of the application.
6. Section 19 of the Limitation Act does not appear to have been the subject of decision in this Court as far as we know see Mungul Prashad Dichit v. Shama Kanto Lahory Chowdry I.L.R. 4 Cal. 708; & Parbottinath Roy v. Tejomoy Banerji I.L.R. 5 Cal. 303 but it has been so in the Allahabad High Court in the case of Ramhit Rai v. Satgur Rai I.L.R., 3 All., 247. We agree with that Court in the construction which it has there put upon the section.
7. Such being our opinion, we hold that the point of departure in this case for the purpose of limitation, is the 7th of December 1877, and consequently that the application for execution made on the 4th of December 1880 was in time. We, therefore, reverse the decision of the lower Court; but, inasmuch as the point on which we have decided this appeal was not clearly taken in the lower Court, we shall allow no costs.