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31. On 6th January 1925, the appellant company presented a fresh application for execution of the decree. Objections were taken by the judgment-debtor that the decree was time barred. The Court of first instance repelled the contention of the judgment-debtor, but the lower appellate Court held that the decree was barred by limitation on the ground that more than three years had elapsed between the date of the application for execution by Miss Chatterji (viz., 23rd July 1918) and on 10th January 1922 when the appellant company again applied for execution. The appellant company came in appeal before this Court and the case was heard by a Bench of two Judges. It was contended before that Bench that the application made by Raghunath Prasad was sufficient to keep the decree alive, though the Court below had held that this application was not bona fide and was a colourable application filed simply to show that Raghunath Prasad was the assignee of the decree. It was further contended by the appellant that in calculating the period of limitation under Article 182, Limitation Act, the period during which the decree was with the Collector for execution should be excluded. The Bench hearing the appeal came to the conclusion that the period during which the decree was with the Collector should be excluded, and that therefore the appellant's application for execution on 10th January 1922 was within time.

40. I am, therefore, of opinion that in the present case the answer to the reference to the Full Bench must be in the negative.

King, J.

41. The facts have been fully stated in the foregoing judgments of my learned brothers.

42. The question was whether an application made on 6th January 1925, for the execution of a decree, was barred by limitation. The decision depended upon the question whether a previous application made on 10th January 1922, to execute the same decree, was effectual to save limitation. The Division Bench which heard the appeal held that the previous application was within time, and held (not expressly but by implication) that it had been made in accordance with law and to the proper Court. Under Clause 5, Col 3, Article 182 Sch 1, Lim. Act 1908 the previous application was prima facie effectual to save limitation. The learned Judges were prepared to decide accordingly, but they doubted whether they were justified in doing so in view of the ruling in Sheo Prasad v. Naraini Bai A.I.R. 1926 All. 95, without first coming to a further finding, viz., that the previous application had been made with the bona fide intention of obtaining execution of the decree, and not merely for the purpose of saving limitation.

71. It may be submitted with respect that on the facts found, the conclusion reached by this Court was the only possible conclusion.

72. The learned Judges made certain general observations which, it is submitted, were not necessary for the decision of the case. These observations, which have seriously influenced the judgment of the lower appellate Court may be reproduced:

On general principles it would seem clear that the legislature where it used phrases "application for execution" and "steps in aid of execution" had in mind a bona fide intention on the part of the decree-holder to proceed with his right to have execution. It does not seem possible that the legislature should have ever contemplated an indefinite period being added to the life of a decree by permitting a decree-holder to take colourable steps in a very thinly disguised pretence of a decree to obtain execution when he really did not want execution at all, but only wanted to secure a further period of limitation during which the amount of his decree might go on increasing. It would, therefore, seem on the face of it a proper interpretation of the words "for execution" and "steps-in-aid of execution" that the decree-holder must really be desiring execution and that the words cannot be read as "an application made with the sole object of extending the period of limitation" and "a step taken with the sole object of extending limitation." The words "for execution" mean "for the purpose of obtaining execution" & the words "step in aid of execution" mean "step taken for the purpose of obtaining execution. This, which appeared upon a consideration of Article 182 to be natural and proper interpretation, research has shown to have the support of weighty judicial authority, though the decisions would seem to have been, to some extent lost sight of, or, even if we may say so, misinterpreted.

81. Act 14 of 1859 was repealed by Act 9 of 1871. Article 169, Schedule 2 of the latter Act provided that the period of limitation prescribed for execution of a decree or order of a civil Court is from the date of the decree or order or where there is an application made from the date of applying to the Court to enforce or keep in force the decree or order or where there is a notice issued, etc.

82. In Rohineenandan Mitter v. Bhagwan Chandra Roy 22 W.R. 154 Markby and Mittra, JJ., ruled that by the new law of limitation it was intended that there should be two specific dates from which the three years should be computed without reference to any enquiry whether the proceedings were taken for the purpose of enforcing the decree or were merely colourable for the purpose of keeping the decree alive. In Eshan Chandra Bose's case their Lordships commented upon the undesirability of leaving the decree-holder without any check or restraint in the matter of executing his decree, but they observed that it was better that those consequences should be exposed by actual examples and brought to notice in judgments of the Courts and the remedy left to the legislature which can properly and effectually deal with them, than that the Courts should, by a forced construction, endeavour to mitigate by their own authority the action and rigour of the law.