1. In this appeal the question is whether an application for execution is barred by limitation.
2. It appears that the respondent brought a suit on a hand-note against two persons, defendant No. 1, the father, and defendant No. 2, the son. His suit as against No. 1 was dismissed with costs, and as against defendant No. 2 was decreed with costs. This was on the 30th September 1912.
3. Against the order dismissing the suit against defendant No. 1 plaintiff appealed. Defendant No. 2 was no party to that appeal and did not himself appeal against the decree that was made against him. The plaintiff's appeal against defendant No. 1 was dismissed on the 23rd May 1914.
4. The plaintiff decree-holder then applied for execution of his decree against defendant No. 2 on the 19th of May 1917. That application was dismissed on default of prosecution, without service of notice on defendant No. 2.
5. Then followed the present application on the 8th of January 1918. This application is within three years from the first application, dated 19th on May 1917, but the contention of the judgment-debtor, defendant No. 2, is that the first application was itself barred by limitation.
6. The question in the appeal then is, whether time runs from the date of the decree against defendant No. 2, made in the Court of first instance on the 30th of September 1912, or from the 23rd of May 1914, that if, the date of the decree in the Appellate Court finally dismissing the plaintiff's claim against defendant No. 1.
7. The question is not free from difficulty. In support of his contention that time runs from the date of the decree of first Court, the appellant before us, the judgment-debtor, cites the cases Christiana Benshawn v. Bennrasi Prasad 22 Ind. Cas. 685 : 19 C.W.N. 287, Lokenath Singh v. Gaju Singh 31 Ind. Cas. 426 : 20 C.W.N. 178 : 22 C.L.T. 333 where Christiana Benshawn v. Benarasi Prosad 22 Ind. Cas. 685 : 19 C.W.N. 287 is cited or referred to with approval; Umesh Chandra Roy v. Ahrur Chandra Sikdar 50 Ind. Cas. 15 : 43 C. 25. and also Hur Proshad Roy v. Enayet Hossain 2 C.L.R. 471, and the Full Bench in Gopal Chander Manna v. Gosain Das Kalay 25 C. 594 (F.B.) : 2 C.W.N. 558 : 13 Ind. Dec. (N.S.) 392.
8. But the oaten cited on behalf of the appellant can be distinguished from the present sage, while the cases Krisinama Chariar v. Mangammal (6) and Ari Chetty v. Theerihamalai Chetty 34 Ind. Cas. 791 : 3 L.W. 521 support the respondent. So do certain observations to be found in the Full Bench case Gopal Chunder Manna v. Gosain Das Kalay 25 C. 594 (F.B.) : 2 C.W.N. 558 : 13 Ind. Dec. (N.S.) 392 The case of Abdul Bahiman v. Maidin Saiba 22 B. 500 : 11 Ind. Dec. (N.S.) 915 has also been referred to, but that is the case of a mortgage.
9. It may farther be observed that, if the appeal preferred by the plaintiff had resulted differently, the decree against defendant No. 1 would have been modified, inasmuch as it would then have become a decree under which defendants Nos. 1 and 2 would have been jointly and serverally liable.
10. In the result, we dismiss this appeal with costs.
11. I agree.