John Woodroffe, J.
1. A preliminary objection which has been taken is to the effect that one of the respondents named Sarada Prosad Dalai is dead and no steps have been taken to have his legal representative, his minor son, brought on the record. This, however, under the circumstances, is no bar to the appeal; and the only effect of it is this, that the appeal will operate as against the respondents other than the respondent Saroda Prosad Dalai and his representatives.
2. Then it is objected that the present application for execution should, apart from the question of limitation, be dismissed on the ground that it is not in accordance with the form's required by the Civil Procedure Code, in that it does not set out the mode of assistance which is sought from the Court; and it is said that the Court, having by an oversight admitted and registered the application which is not in form, cannot allow it to be amended into a valid application within the meaning of the provisions of the Code. This objection, I may point out, is not one which has been raised in any portion of the proceedings up to the present time. The objection which was raised in the lower Appellate Court was that the application was time-barred. It has been suggested that it is nevertheless open to the respondent to take this ground. But Order XLI, Rule 22, Civil Procedure Code, does not assist the respondent. That only permits the respondent to support the decree on any of the grounds decided against him or to take cross-objections. There is no question of cross-objection in this case, and the particular ground which is now taken was not decided against the respondent, nor was it in issue in the lower Court nor made the subject of adjudication at all. On these grounds this point fails.
3. The main question is that of limitation on which the lower Court has dismissed the application for execution. It turns upon the question as to whether the facts to which I am about to refer amount to a step-in-aid of execution of the decree. If the facts as recorded or said to have taken place on or after the 29th May 1911 amount to a step-in-aid of execution, then it is admitted that the application is not barred.
4. On behalf of the respondent it is contended that it does not constitute such a step. The facts are that on the 10th May 1911 an order was made by the Court to register and to issue notice under Order XXI, Rule 22, of the Civil Procedure Code, fixing 7th June 1911 for hearing. It is important to observe that this notice was directed by the Court. On the 25th May the notice was served. An affidavit of the service of notice was sworn to by the decree-holder's nephew on the 27th May 1911 and was filed on the 29th May 19il. All this shows the intention of the decree-holder to proceed with the execution of the decree. The service was proved on the 7th June 1911. That having been done the next order which the Court should have passed was an order that the service of notice having been proved, let the decree be executed. No such order appears on the record, although it is contended that we must assume that the Court had it in its mind, because otherwise it would not have dismissed the case for default. The judgment is appealed against on two grounds. It is stated that no order having been made by the Court that the decree should be executed, the proceedings were not brought to a legal termination and the present application should be regarded as one for revival of the previous application which was not properly dismissed.
5. It is next contended that the present application for execution, even if it were an independent application, was not barred by limitation, because the proof of service of notice would amount to a step-in-aid of the execution of the decree. This has been contested, and it may be admitted that the point is one which is open to argument. But I am not myself disposed in the present case to take a narrow view of the facts, and from these facts we have it that notice was served in pursuance of a previous order of the Court: that the service was proved, and that may be taken to be an invitation to the Court to proceed to the next order which should have been made in these proceedings, namely, that the decree be executed.
6. I am not prepared on these facts to say, therefore, that the application is time-barred. I, therefore, set aside the order of the Court below and decree this appeal with costs, the hearing fee being assessed at five gold mohurs.
7. I agree. In my opinion the decree-holder's act of filing the affidavit on May 29th, 19,1 is equivalent to applying to the Court to take a step-in-aid of execution, namely, whether on contest or ex parte, to order that the decree should be executed.