1. This is an appeal from an order of the Subordinate Judge of Hooghly, disallowing an objection to the execution of a decree on the ground of limitation.
2. The decree was made ex parte on the 30th May 1888, and was for arrears of rent not exceeding Rs. 500. An application to execute the decree (No. 219 of 1889) was made on 27th May 1889, and certain property was attached; but on the 31st August, the day fixed for sale, the judgment-debtor applied to have the ex parte decree set aside, and pending the disposal of that application, the sale was stayed. On the 31st October 1889, the Court made a further order striking the execution case off the file 'for the present,' the property remaining under attachment.
3. The application to set aside the decree was rejected on the 28th December 1889, and this order was confirmed in appeal on the 16th May 1890.
4. On the 21st January 1892, the decree-holder made an application to execute the decree by attachment and sale of certain properties, and in that application he prayed that 'the attachment in execution 219 of 1889 might remain in force, and action be taken in the present execution as a continuation or revival of the said execution.'
5. The judgment-debtor contended that the application of the 21st January 1892 was barred under Schedule III, Article 6, of the Bengal Tenancy Act, three years having elapsed since the date of the decree. The Subordinate Judge disallowed the objection relying on the case of Lutful Hug v. Sumbhudin Pattuck I.L.R. 8 Cal. 248, and holding that the order of 16th May 1890 dismissing the appeal against the order rejecting the application to set aside the ex parte decree was the final decree within the meaning of the article referred to. And he also held that as regards the properties named in the first application, the present application might fairly be considered to be a continuance of the proceedings taken upon that application.
6. It is contended before us that the Subordinate Judge was wrong in treating the order of the 16th May 1890 as the final decree in the suit, and in allowing a fresh period of limitation from the date of that order; and it is further argued that the application of the 21st January 1892 must be taken to be an application to execute the decree within the meaning of the article in question, and that it is therefore barred.
7. We agree with the learned pleader who appeared for the appellant in this case that the decree in question must be taken to be a decree under the Bengal Tenancy Act within the meaning of Schedule III, Article 6. We think that, having regard to Sections 143, 144 and 148 of that Act, there is a special procedure laid down for rent suits, and that therefore decrees in rent suits are decrees under that Act, within the meaning of that article.
8. We are also of opinion that the 'final decree' mentioned in that article must be the final decree in the suit and cannot be held to include an order in appeal upon an application to set aside that decree under Section 108 of the Code. It follows, therefore, that execution of the decree now in question would be barred, unless applied for within three years from the date of the decree of 30th May 1888. We have, however, been referred to a case of Chandra Prodhan v. Gopi Mohun Shaha I.L.R. 14 Cal. 385, which appears to be on all fours with the present case, in which it was held that when the execution proceedings are stayed by order of the Court, a subsequent application to remove that order and proceed with the execution may be taken as a continuation of the former proceedings. That decision appears to be in harmony with a long series of decisions both in this Court and in the other High Courts, and we see no reason to dissent from it. In the present case execution of the decree was stayed at the instance of the judgment-debtor; the case was struck off the file merely 'for the present' and for the convenience of the Court; the property remained under attachment, and in his application of 21st January 1892 the decree-holder expressly prayed that that application might be taken to be a continuation of the former proceedings. Under these circumstances we think that the application in question must be taken to be not a distinct application to execute the decree, but an application in the former execution proceedings, so far at least as regards the property which was mentioned in the former application to execute the decree, and which was under attachment at the time when that execution case was struck off, that is to say, on the 31st October 1889. As regards any other properties mentioned in the application of the 21st January 1892, we think that, as has been decided in several cases both in this Court and in the other High Courts, the application is barred. The appeal will accordingly be allowed except as regards the property which was under attachment in execution case No. 219 of 1889, and the Court executing the decree will, of course, see that no proceedings are taken against any other property except that mentioned in the application of 27th May 1889. We make no order as to costs in this Court.