Rampini, J.:— This is an appeal against an order of the District Judge of Hughly holding that execution of a mortgage-decree is barred by limitation.

The decree is an order absolute for sale passed on the 4th May 1898. The Judge has held that the 2nd application for execution made on the 22nd June 1901 was barred by limitation and hence this appeal.

Three pleas have been urged before us, (1) that an application of the 12th July 1899 by the decree-holder for leave to bid at the sale saves limitation, (2) that the issue of a writ of proclamation on the 13th May 1902 saves limitation and that the question of limitation is res judicata, and (3) that the issue of a notice under sec. 248 saves limitation.

I am of opinion that there is no ground for this appeal.

It is clear that the execution of the decree is barred by limitation, the second application for execution having been made more than 3 years after the first application, which was made on the same date as the order absolute. It cannot be saved by the application for permission to bid at the sale, this not being an application to the Court to take some step in aid of execution. This has been held in two cases of this Court, viz., Toree Mohamed v. Mabood Bux(1) and Raghunundan Misser v. Kallydut Misser(2), from which I see no reason to dissent. Some doubt has been expressed with regard to the correctness of these rulings in Troylokya Nath Bose v. Jyoti Prokash Nandi(3), but the remarks of Banerjee, J., in that case are dearly obiter dicta and were the observations of one Judge only.

The next ground is that the issue of a writ of execution on the 12th May 1902 and the dismissal of the application of execution on the 20th December 1902 make the question of limitation res judicata in favour of the decree-holder. But the question of limitation was never decided on either occasion. The application for execution was dismissed as neither party came to prosecute his respective case, so the question of limitation was never fairly raised or decided.

In support of the third ground, no notice under sec. 248 has been shown to have been issued, nor has its date been stated. Hence it is impossible to give effect to this plea.

The appeal will be dismissed with costs, the hearing fee being assessed at 3 gold mohurs.

Mookerjee, J.:— On the 22nd March 1898 the Plaintiff in a mortgage suit, now represented by the Appellant., obtained a decree for sale of the mortgaged property, against the Defendant, the predecessor in interest of the present Respondent. The decree was made absolute on the 4th May 1898 and on the same date the decree-holder applied for the execution of the decree. The usual sale-proclamation was issued in due course, and the sale was fixed for the 11th July 1898. On that date the sale was postponed to the 12th when the deoree-holder applied for permission to bid at the sale, and leave was granted as there were no bidders however the sale could not be held, and on the next day upon the application of the decree-holder the execution case was struck off. On the 22nd June 1901, the decree-holder presented a second application for execution, and after some delay caused apparently by his laches, a sale-proclamation was issued fixing the 14th July 1902 for the sale. The judgment-debtor thereupon preferred an objection under sec. 244, O.P.C, that the application for execution was barred by limitation. After a number of adjournments, the 20th December 1902 was fixed for the hearing of the case; but on that day neither did the decree-holder appear to prosecute the application for execution, nor did the judgment-debtor appear to support his objection. Accordingly the Court passed the following order:— Neither party appears; ordered that the execution case be dismissed on default and the case under sec. 244, O.P.C, be also dismissed for the same reason.” On the 4th March 1904, a third application for execution, which is the foundation of the proceedings now before us, was presented by the decree-holder. The judgment-debtor objected that inasmuch as the second application for execution was barred by limitation, the present application could not the entertained. The Courts below have given effect to this objection and dismissed the application.

The decree-holder has appealed to this Court, and on his behalf, the propriety of the order of the learned District Judge has been questioned substantially on two grounds, namely, first, that the judgment-debtor is stopped by the order of the 20th December 1902, which negatived his objection to the second application for execution, from raising the same question in the present proceedings; and, secondly, that assuming that it is open to the judgment-debtor to raise the question of limitation, the application is not barred by reason of the provisions of cls. 4 and 5 of Art. 179 of Sch. II to the Limitation Act. In my opinion neither of these contentions is will-founded and both must be overruled.

In support of his first contention, the learned vakil for the Appellant argues that the objection now taken to the validity of the second application for execution was taken by the judgment-debtor in the course of the previous proceedings and was disposed of by the order of the 20th December 1902, and that consequently, the matter cannot be re-opened. In support of this argument he relies upon the cases of Mungal Persad v. Girijakant(4) and Sheoraj Singh v. Kameshar Nath(5). In my opinion neither of these two cases lends any support to the contention of the Appellant. The first case is an authority for the proposition that assuming that a decree is barred at the date of some order made for its execution, such order though erroneously made is nevertheless valid and binding upon the parties unless set aside in due course of law. As pointed out by Sir Barnes Peacook, the principle is that an order made by a Court having competent jurisdiction to try and determine whether the decree was barred by limitation has binding effect so long as it remains unreversed. Such binding effect, however, of the previous order depends not upon sec. 13 of the Code of Civil Procedure, but as is explained by Sir Barnes Peacock in delivering the judgment of the Judicial Committee in Ram Kirpal v. Rup Kuari(6), upon general principles of law, for if the previous decisions were not binding upon the parties, there would be no end to litigation. In the case before us, however, although the objection of limitation was taken in the previous proceedings, it was not decided and the decision of the question became unnecessary because the decree-holder did not come forward to carry on the execution proceedings. This circumstance, in my opinion, distinguishes this case from the decision of the Allahabad High Court in Sheoraj Singh v. Kumeshar Nath, upon which the learned vakil for the Appellant laid considerable stress. In that case, upon notice of an application for execution having been served upon the judgment debtors, they filed objections, but on the day fixed for hearing, failed to support them, and the objections were consequently overruled. The application for execution was, however, untimately struck off by reason of the non-payment of process-fees by the decree-holders. Upon a subsequent application for execution being made, the judgment-debtors pleaded limitation in respect of the previous application, and the learned Judges held that it was not open to them to re-open the matter. In the present case, as I have already stated, on the day fixed for the disposal of the objection to execution raised by the judgment-debtor, neither the latter or the decree-holder appeared and the objection was struck off without any judicial determination. Under these circumstances, the dismissal of the objection cannot rightly be held to operate as a bar to its being urged when the decree-holder applies for execution again. The view I take is amply supported by the cases of Onkar Singh v. Mohan Kuar(7) and Bhola Nath v. Profulla Nath(8).

The first contention advanced by the Appellant must, therefore, be overruled, and the objection of the judgment-debtor that the previous application for execution was barred by limitation must be examined on the merits.

In support of his second contention, namely, that the previous application for execution was not barred by limitation the learned vakil for the Appellant relies upon cls. 4 and 5 of Art. 179. The second branch of this contention which is founded upon the assumption that a notice under sec. 248 of the Civil Procedure Code was issued in the course of the previous proceedings, does not require any detailed examination. It has not been shown that any such notice was issued and there is nothing on the records which lends any support to the assumption. The first branch of the contention, however, raises an important question the solution of which is not wholly free from difficulty. It is argued on behalf of the Appellant that the application made by the decree-holder during the pendency of the first execution proceedings, on the 12th July 1898, for leave to bid at the sale was an application in accordance with law to the proper Court to take a step in aid of execution of the decree, and that consequently, the second application for execution which was presented within three years of the application for leave to bid, was not barred by limitation. Reliance is placed in support of this proposition upon the cases of Bansi v. Sikreemal(9), Dalel Singh v. Umrao Singh(10) and Vinayak Rao Gopal Deshmukh v. Vinayak Krishna Dhebri(11). The learned vakil for the Appellant also points out that although a contrary view has been taken by this Court in the cases of Toree Mohamed v. Mabood Bux and Raghunundan v. Kallydut the correctness of these decisions has been doubted by Mr. Justice Banerjee in Troylokya Nath v. Jyoti Prokash, although in the same case Mr. Justice Geidt expressed his concurrence with the decisions referred to. The learned vakil for the Appellant has invited us to dissent from the two cases which are opposed to his contention, to adopt the rule laid down by the Allahabad and Bombay High Courts and, if necessary, to refer this question for decision to a Full Bench. Having regard to the diversity of judicial opinion upon this matter, it is necessary to examine the principle upon which the various decisions were based. In Toree Mohamed v. Mabood Bux Macdonell and Tottenham, JJ. expressed their opinion that an application to the Court by the decree-holder for leave to bid at the sale was not an application to the Court to take a step in aid of execution, but no reasons were assigned in support of this opinion. In Bansi v. Sikreemal, Young, J., took the opposite view and dissented from the case just mentioned but did not assign any reasons in support of the view taken by him. In Raghunundan v. Kallydut, Trevelyan and Beverley, JJ., dissented from the view of the Allahabad High Court, and in support of their opinion, gave two reasons, namely, first, that an application for leave to bid is not a step taken by the Court but by the judgment-creditor and, secondly, that the application is not in any way a step in aid of execution, but merely an application for removal of the restriction which the Code of Civil Procedure has placed upon the action of the judgment-creditor. With all respect for the learned Judges who decided this case, I am unable to agree that the first reason is well-founded, I am disposed to agree with Farran, C.J, who pointed out in Vinayak Bao v. Vinayak, that the application invites the Court to take a step, namely, to grant leave to the decree-holder to bid. Assuming, therefore, that this step is a step in aid of execution, I would hold that the application is one to the proper Court to take some step within the meaning of Art. 179, cl. (4). As regards the second reason upon which the decision of this Court in Raghunundan v. Kallydut is founded, the learned Judges appear to have assumed that the granting of leave to the decree-holder to bid can in no case be an aiding of the execution of the decree. The contrary view was taken by the learned Judges of the Allahabad High Court in Dalel Singh v. Umrao Singh when they assumed that the granting of such leave must in every case amount to an aiding of the execution of the decree. They observed that the fact that a decree-holder is prepared to bid for a property and is anxious to purchase, is, in the absence of a fraud which cannot be presumed, distinctly an act which modifies the conditions of the sale to the obvious benefit both of the decree-holder and the judgment-debtor and brings the decree within nearer distance of complete execution and satisfaction; and they added that in many cases this makes the difference between complete satisfaction and partial satisfaction. After a careful examination of the authorities to which I have referred, I regret, I find myself unable to adopt either of the two extreme views indicated therein. I do not think it can be rightly affirmed as an inflexible rule of law that the granting of leave to a decree-holder to bid at the sale must in every case, or may not in any case, amount to an aiding of the execution. In determining whether a particular step which the Court is invited to take is or is not a step in aid of the execution, regard must be had not merely to the nature of the step to be taken, but also to the surrounding circumstances. No doubt in some cases, it may be possible to determine by reference merely to the nature of the step which the Court is invited to take, whether it will or will not aid the execution. For instance, as pointed out in the case of Ambica Pershad v. Surdhari Lal(12), when a Court is asked to issue a proclamation of sale in respect of property already attached in execution of a decree, there can be no doubt that the steps which the Court is invited to take, if taken must necessarily aid the executlon of the decree. On the other hand, as observed in the cases of Abdul Hossain v. Fazilun(13) and Kartik Nath v. Jagger Nath(14), when a decree-holder asks the Court for the postponement of a sale, he invites the Court to take a step, which if taken, does not aid but rather retard the execution. But there may be cases in which the step which the Court is invited to take, may be of an ambiguous or neutral character, if considered apart from the surrounding circumstances and the granting of leave to a judgment-creditor to bid at an execution sale appears to me to fall within this class. It is not inconceivable that there may be cases in which the granting of such leave may amount to an effective aiding of the execution, and may indeed prove to be the only means of doing so, for instance, if in a particular case, by reason of the nature or extent of the property advertised for sale, no independent binders come forward, and the decree-holder is willing to purchase the property at a fair price, the grant of leave to him to offer bids, would be an effective aid to execution. On the other hand, there may be many instances in which the grant of such leave may not in any way aid or affect the execution; for as pointed out by Ryves, J.C, in Safia Begum v. Raisunnissa(15), a decree-holder may well apply for leave to bid from no settled determination to bid, much less to purchase, but merely to get rid of the legal prohibition which otherwise prevents him from being a competitor and to enable himself to pick up the property cheaply if the opportunity arises. It further appears to be clear from the provisions of sec. 294 of the Civil Procedure Code which lays down that no holder of a decree in execution of which property is sold shall, without the express permission of the Court, bid for or purchase the property, that in the view taken by the legislature of the position of an execution creditor, it was thought desirable that some restriction should be placed upon him in the matter of offering bids for or purchasing the property. From this, I think, the inference may legitimately be drawn that in the opinion of the legislature to allow the decree-holder to bid at the sale may not in every instance be to aid the execution; see the observations of this Court in the case of Sheo Nath Doss v. Janki Prosad(16) referred to in the judgment of the Judicial Committee in Mohamed v. Savvasi(17). I may further add that to lay down as an inflexible rule of law, as the Bombay and Allahabad High Courts seem to have done, that an application to the Court for leave to bid is in every case an application to the Court to take a step in aid of execution would be unreasonable from another point of view; for, the Court may in the exercise of its judicial discretion, refuse such an application, and the refusal may well be on the ground that in the circumstances of the particular case, the grant of leave to the decree-holder may prejudice the judgment-debtor and may not in any way aid the execution. The only rule, therefore, which commends itself to me as reasonable is that when a decree-holder relies upon a previous application to the Court for leave to bid at the sale, as saving limitation, it is not sufficient for him to show that such application was made, but he must further show that the circumstances under which it was made were such that the grant of leave did in fact aid, or would have aided, the execution. Whether the application was granted or refused, the grounds upon which the order of the Court was made would have obviously a material bearing upon the determination of the question. Judged by this test the Appellant must, in my opinion, clearly fail. The application made on the 12th July 1898 is not on the record, and there is no evidence to show under what circumstances it was presented or what grounds were urged in support of it. If any inference may be drawn from the subsequent conduct of the decree-holder, it is adverse to the case he now seeks to make; though he obtained leave to bid, he made no attempt to avail himself of the privilege and did not further the execution by offering any bids; on the other hand, upon his application, the execution proceedings were struck off. Under these circumstances, I must hold that the Appellant has failed to show that the application presented by him to the Court on the 12th July 1898 for leave to bid, was an application to the Court to take a step in aid of execution, and the present application must consequently be regarded as barred by limitation.

It may be added that it does not seem possible to bring this case within the rule laid down by the Judicial Committee in Shaikh Kamar-ud-din Ahmad v. Jawahir Lal(18), as the first execution proceeding was apparently disposed of and not merely suspended, and the second application initiated a fresh execution and did not seek to revive and carry through a pending execution. All the points urged on behalf of the Appellant fail and the appeal must be dismissed with costs.

S.C.S

Appeal dismissed.