1. This is an appeal by the decree holder against an order refusing execution of his decree on the ground that his application is barred by limitation. The following are the dates necessary to understand the points which have been urged at the hearing of the appeal. The decree was passed on the 10th July 1908 and an application for execution was made in 1911 with which we are not concerned Then a second application was made in 1914. On the 18th January 1915, a notice was filed for service on the judgment-debtor, under Rule 22 of Order XXI of the Code of Civil Procedure. On the 22nd of January 1915 that notice was signed by the Sheristadar of the third Court of the Subordinate Judge at Alipur. As the judgment debtor resided in the town of Calcutta that notice was forwarded to the clerk of the Small Cause Court of Calcutta on the 22nd January and was received by him on the 23rd January 1915 for service. On the 25th January 1915, the clerk of the Small Cause Court ordered the notice of the proceedings to be served and the notice was served on the judgment' debtor in Calcutta on the 27th January 1915. On the 23th January 1915 the decree-holder's identifier made an affidavit, of service in the Small Cause Court and that affidavit was forwarded with the return of service to the executing Court at Alipur. in the Alipur Court the 2nd of February had been fixed for the hearing of the execution case. On that day the case was adjourned to the next day when it was dismissed for want of prosecution. The present application for execution was filed on the 25th January 1918. The question, therefore, is whether any act was done on or after the 25th January 1915 from which the period of limitation under Article 162 of the Schedule of the Limitation Act can be held to have commenced to run. Three points have been raised on behalf of the appellant. The first is that limitation should run from the 25th January 1915 when the order for service was passed by the Small Cause Court. The second is that the filing of the affidavit on the 28th January 1915 was a step-in aid of the. execution from which the period of limitation should commence and thirdly, that limitation should run from the 2nd February 1915 when the Court passed an order on the application for execution.
2. As regards the first point, reliance is placed on the case of Ratan Chand Oswal v. Deb Nath Barua 10 C.W.N. 303 : 4 C.L.J. 530 where it was held that the date of issue of notice was the date when the Nazir of the Court made over the process to the peon for service. As regards the meaning of the word 'issue' in Clauses (6) of Article 182 of the Indian Limitation Act, reference may be made to Sections 27 and 28 of the Code of Civil Procedure and also to Order V, Rule 21 and the following rules. There it is clear that the Court which issues a notice or summons is the Court having jurisdiction in the matter and not the Court to which the notice or summons is sent for service. In the present case the issuing Court is the Court of the Subordinate Judge at Alipur and not the Court of Small Causes in Calcutta. We cannot say that the notice can, under any circumstances, be said to have been issued on any date subsequent to its leaving the Court that was executing the decree, that is to say, the 22nd of January 1915. In the case relied on, the Nazir who made over the process to the peon for service was the Nazir of the Court executing the decree. What was held in that case was that the date of issue, was the date on which the notice actually left the Court and that is the view we take in the present case. The notice actually left the Court of execution on the 22nd January, and the fact that in the Court of service it was made over to the peon on a later date cannot extend the period of limitation.
3. As regards the second point, it turns on the meaning of the expression 'Applying in accordance with law to the proper Court for execution or to take some step in aid of execution' in Clause 5 of Article 18 3 of the Schedule of the Indian Limitation Act. On behalf of the appellant, great reliance is placed on the decision of this Court in the case of Pran Krishna Das v. Protap Chandra Dalal 38 Ind. Cas. (sic) : 21 C.W.N. 423. In that case it was held that filing an affidavit to prove service on the judgment-debtor of a notice issued under Order XXI, Rule 22 of the Civil Procedure Code was equivalent to applying to the Court to take a step-in aid of execution. At first sight this case seems to support the appellant's contention, but the facts in the present case are clearly distinguishable. In the first place the affidavit of service was never filed by the decree holder, and secondly, it was not filed in the proper Court as defined in Explanation 2 of Article 182. But in any case, we cannot hold that the filing of the affidavit in this case can be treated as an application to the proper Court to take some step-in-aid of execution. As was pointed out in the case of Sarat Kumary Dassi v. Jagat Chandra Roy 1 C.W.N. 260 the question whether an application in aid of execution has or has not bean made is a pure question of fact. In this case, the lower Appellate Court, as a final Court of fact, has held that neither a written nor an oral application was made along with the affidavit. Having regard to this finding it is unnecessary to consider the many cases cited on both sides in which certain acts by the judgment-debtor in execution proceedings were held to amount to an application to take a step-in aid of execution. If no application was made, the period of limitation cannot be extended by any act that was done.
4. As regards the last point, it seems obvious that if on the date of hearing the case no application by the decree holder to the Court can be implied, that date of hearing cannot be substituted for the date of the application. In the case to which we have already referred, namely Sarat Kumary Dassi v. Jagat Chandra Roy 1 C.W.N. 260 it was held that the 3rd March 1893, that is, the date when the order was passed on the application for execution, could not be treated as the date of the application which had, in fast, been made on the 11th January 1393 as there was nothing to show that there was any fresh application made on the 3rd March 1893. Also it was pointed out in the ease of Madan Mohun Dey v. Ganga Chandra Roy 13 Ind. Cas. 189 : 17 C.L.J. 422 that the time runs from the date of the presentation of the application and not from the date on which the application is disposed of by the Court.
5. We, therefore, hold that this appeal fails on all the three points urged before us and is dismissed with costs.
6. We assess the hearing fee at five gold mohurs.