1. This is an appeal by the judgment-debtor against a decision of the District Judge of Noakhali, dated the 9th April 1921, dismissing an appeal preferred by the judgment-debtor to him and confirming a decision of the Munsif.
2. The facts are as follows. A rent decree was obtained against the judgment-debtor on the 24th of May 1916. The decree-holder in execution of the decree brought the tenancy to sale on the 7th September 1918. The sale was set aside at the instance of the judgment-debtor on the 1st October 1920 the ground for setting aside the sale being that the sale proclamation had been suppressed. Although the sale had been set aside the decree-holder did not refund the purchase-money paid by the auction-purchaser. No order to this effect was made at this date. Then the decree-holder made a second application on the 20th April 1921 for execution of the rent-decree. It was urged by the judgment-debtor that the application was barred by limitation. But this contention was overruled. On appeal it was held that limitation was no bar but that the application for execution was not maintainable inasmuch as the money had not been refunded by the decree-holder and in the result the application of the 20th April 1921 was dismissed. The learned Judge states 'The execution case is dismissed,' But this must clearly apply to the application of the 20th April 1921, alone for in an earlier part of his judgment the learned Judge expressly states that the applicant, that is, the decree-holder, may apply for execution in continuation of his previous application, that is to say, the application of 1918 which, it seems to me by virtue of this order of the District Judge is clearly treated as then pending and undisposed of. On the 5th September 1921 the auction-purchaser applied for refund of the purchase-money paid by him and an order for such a refund was made on the 26th November 1921. But in fact the money was not refunded until the 23rd February 1923. Subsequent to the refund, namely, on the 27th February 1923, the decree-holder again applied for sale of the property in continuation of the previous execution case. It is stated that before the 10th of August 1921 the property was brought to sale by the same decree-holder in execution of another decree and that he purchased it himself. But the facts on this point are not clear and we do not think that we can attach any importance to this sale in the present application.
3. Then to return to the application of the 27th February 1923 the first Court held that it was not barred by limitation, holding that time ran from the date of the refund, that it to say, 23rd February 1923. The lower Appellate Court confirmed this decision and held that the application of the. 27th February 1923 was merely in continuation of the first application for execution and that accordingly, it was not time-barred.
4. Now the case is governed by the special rule of limitation applicable by virtue of Article 6 of Schedule (III) of the Bengal Tenancy Act which provides that the period of limitation for execution of a decree made between a landlord and a tenant is a period of three years unless the judgment-debtor has prevented the execution by fraud or force. It is accordingly contended before us that the present application is time-barred by virtue of the provisions of Article 6, more than three years having elapsed since the date of decree now sought to be put into execution. It seems to me, however, that the only question that really arises is whether the present application, that is to say, that of February 1923 can be treated as a continuation of the first application for execution made in 1918. If it can be so treated, then clearly, no question of limitation arises. We have been referred to several cases in support of the contention urged by the learned Vakil for the appellant and noteably to the case of Midnapore Zemindary Company, Limited v. Dina Nath Saha 45 Ind. Cas. 712 : 22 C.W.N. 766. But it seems to me that the ground of that decision was that there had been actual dismissal of the execution case and in the judgment of the Court this is expressly insisted on and it is stated that but for this the application which was held to be barred might have been treated as a continuation of the original application for execution. Now in the case before us, as I have already indicated, there was apparently no dismissal of the original application for execution. Satisfaction, it is true, was entered after the sale had taken place but the matter was subsequently re-opened and satisfaction was set aside by reason of the application of the judgment debtor of the 1st October 1920 and accordingly, it seems to me that no special application was necessary to revive the first application which was still pending before the Court until it was finally disposed of and as I have already pointed out the District Judge in passing the order of the 10th August 1921 expressly stales that this application is still pending and that an application in continuation thereof could still be made if the money which had been paid was refunded by the decree-holder. For these reasons, therefore, we think that the case is not barred by the provisions of Article 6 of the Bengal Tenancy Act and that the lower Appellate Court has rightly held that the application was in continuation of the original application for execution.
5. The result, therefore, is that the appeal fails and is dismissed with costs, hearing fee two gold mohurs.