1. The substantial question of law which calls for decision in this appeal is whether an application presented on the 28th August 1907 for execution of a decree made by this Court on the 28th August 1895 is barred by limitation. In order to explain the circumstances under which this question which has been concurrently answered against the decree-holder by the Courts below, arises, it is necessary to state that the immediately preceding application for execution was made on the 27th August 1904. Prima facie, therefore, the application made on the 28th August 1907 is barred by limitation. The decree-holder, however, relies upon certain proceedings which took place in Court on the 30th August 1904 and contends that the present application is saved from the bar of limitation under article 179 Clause 4 of the second schedule of the Limitation Act. The original decree was in favour of two persons, but the application of the 27th August 1904 was presented by one of them alone named Raj Behary Chackravarty. He stated in the petition that his brother had refused to execute the decree either separately or jointly and as the time limited for execution was about to expire, it was necessary for him to present this application at once. He, accordingly, prayed that under Section 231, C. P. C, he might be permitted to proceed with execution subject to the condition that the amount realised by sale would not be paid except upon the joint receipt of both the decree-holders. This application though presented on the 27th August was not dealt with by the Court till three days later. On the 30th August the following order was recorded:
Let the petition filed on the 27th August for execution be registered. It appears that it is necessary to issue notice upon the judgment-debtors under Section 248, C. P. C. Ordered that the decree-holders do within 7 days deposit the costs of service of notice. Put upon the 15th September for further orders.
2. On the same day a second order was subsequently recorded to the following effect:
Upon the application of one amongst the decree-holders, Raj Behary Chackravarty, it is ordered that he be permitted to execute the decree on behalf of all the decree-holders subject to the condition that the money realised should not be paid out unless all the decree-holders apply together.
3. The execution proceeding thus initiated by the application of the 27th August 1904 was, however, subsequently dropped and on the 22nd September it was dismissed for default. The decree-holder now contends that on the 30th August 1904 he did apply to the execution Court to take some step-in-aid of execution of the decree, namely, to grant him leave to proceed with execution of the whole decree on behalf of all the decree-holders. His contention is that an application for an order under Section 231 C. P. C. is an application to the proper Court to take some step-in-aid of execution within the meaning of article 179 of the Limitation Act. The argument before us has proceeded on the assumption that an application for leave to execute a decree under Section 231 is an application of the nature contemplated by Clause 4 of article 179 of the Limitation Act. But it has been contended by the learned Vakil for the judgment-debtor that there was no application on the 30th August 1908 sufficient to bring the case within that clause. In the Court of first instance the decree-holder filed an affidavit in support of his allegation as to what took place in Court on the 30th August 1904. He was subsequently examined and cross-examined. The Courts below have concurrently found that there was no oral application by the decree-holder on the 30th August, 1904. This is a finding of fact with which, we are not competent to interfere in second appeal. It has further been suggested by the learned Vakil for the respondent that the mere fact that the application of the 27th August was disposed of by the Court on the 30th August does not bring the case within Clause 4 of article 179, and in support of this contention, reliance has been placed upon the cases of Faez Buhsh Chowdhry v. Sadut Ali Khan 23 W.R. 282; Sarat Kumary Dassi v. Jagat Chandra Roy 1 C.W.N. 260 and Troylokya Nath Bose v. Jyoti Prohash Nandi 30 C. 761. These cases as also the decision of a Full Bench of the Allahabad High Court in Fakir Muhammad v. Ghulam Husain 1 A. 580 show that 'the date of application to a proper Court' within the meaning of Clause 4 of article 179 signines the date of presentation of the application, and not the date on which the application is considered and disposed of by the Court. Now the application of the 27th August was one for execution. It also contained a prayer for an order under Section 231 of the Code. We need not consider, therefore, what would have been the position if the application of the 27th August had been a bare application for execution and if subsequently an application had been made to the Court for leave to carry on execution by one judgment-creditor, under Section 231 of the Code. As already stated, the application of the 27th August was for leave to execute the decree under Section 231. That leave was granted on the 30th August. It is quite clear upon the authorities as well as on the language of article 179 that the order of the 30th August is not sufficient to keep alive the decree. We must, therefore, hold that the decree-holder is not entitled to proceed with execution on the basis of the present application, for tints runs as against him not from the 30th August 1904 but from the 27th August 1904.
4. The result is that the order made by the District Judge must be affirmed and this appeal dismissed with costs.
5. We assess the hearing-fee at five gold mohurs.