1. The first Court in this case held that the decree was not barred by limitation, and on another point decided in favour of the judgment-debtors.
2. The decree-holder alone appealed against the latter finding. No objection under Section 561 was taken by the judgment-debtors against the finding as regards limitation which was adverse to him. At the hearing of the appeal, in the course of the argument, the point of limitation was raised, and the lower Appellate Court held that execution was barred.
3. We are of opinion that the lower Appellate Court was, under the circumstances, not competent to consider this point; and in this respect we concur in the judgment delivered by another Division Bench of this Court in the case of Alimannissa Khatoon v. Syed Hossein Ali 6 C.L.R. 267. The District Judge has gone beyond the law in stating that the point of limitation must be considered, even though it be not pleaded.' The terms of Section 4 of the Limitation Act declare that a Court has this power although limitation has not been set up as a defence; and we think that this has been rightly interpreted, in the judgment already cited, to mean so far as regards the particular suit, or appeal, then under decision before the Court is concerned. The present case differs from the precedent cited only in this respect, that in that case the appellant had not made the question of limitation one of the grounds of appeal. In the case before us the judgment-debtors, against whom the judgment of the first Court on this point was pressed, did not appeal against it, nor did they, when the decree-holder appealed, make any objection in writing within the terms of Section 561. Under these circumstances the lower Appellate Court was not competent to re-open the point. The order of the lower Appellate Court must therefore be reversed, and that of the first Court restored. The decree-holder will be entitled to costs, both in this Court and in the lower Appellate Court.
4. I am entirely of the same opinion. The effect of Section 4 of the Limitation Act, as I understand it, is simply this: Whenever a case is properly before a Court, whether it is a Court of appeal or a Court of First Instance, it is bound to take notice of the question of limitation; but in order to enable the Appellate Court to do that the case must be before it. In the present case the order objected to was not before the Court below at all in its entirety, but only a portion of it. The whole might have been brought before the Court by appeal, or by cross appeal only on objection under Section 561 of the Code. That was not done. The lower Appellate Court therefore had no right to enter into the question of limitation, affecting that part of the order which was not before it.