Banerjee, J.:— This appeal arises out of an application for execution of a mortgage decree. The application was opposed by some of the judgment-debtors, one of whom, at least was a subsequent mortgagee; and the objection was that execution of the decree was barred by limitation.

The Court below has disallowed that objection, holding in the first place that there is no limitation for application for the sale of mortgaged property, under sec. 89 of the Transfer of Property Act, and in the second place, that even if Art. 179 of the second schedule of the Limitation Act applies to the case, the application for execution was saved from being barred by limitation by reason of the decree-holders having applied for putting off the sale on the 10th June, 1895, and by reason of his having pressed his application for permission to bid on that same date, which was within three years from the date of the last application.

The objecting judgment-debtors, being dissatisfied with this decision, have preferred this appeal; and it is contended on their behalf that the Court below is wrong in holding that there was no limitation applicable to the case, and that even if limitation applied execution of the decree was saved from being barred by limitation by reason of what the decree-holders did on the 10th June, 1895. It is further contended for the Appellants that the Court below ought to have held that execution was barred by reason of the previous application for execution having been against judgment-debtors, other than the objectors, as the case comes within the scope of the first part of the second paragraph of Explanation (I) to Art. 179 of the Limitation Act.

On the other hand, it is argued for the Respondents that the judgment of the Court below was not only right, so far as it went, but that the Court below should further have held that it was not competent to the objectors who were puisne mortgagees, to contend that execution of the decree was barred by limitation, and that, even if it was open to them to raise the contention, the present application was saved from being barred by reason of the decree-holders resisting the application of some of the judgment-debtors for the sale of the mortgaged properties in a certain order.

The contentions raised in this appeal, therefore, give rise to the following points for determination: first, whether the Appellants, the subsequent mortgagees can plead limitation; second, whether there is any limitation for the execution of mortgage decrees; third, whether execution is barred by reason of the prior applications for execution being made against the judgment-debtors, other than the Appellants; fourth, whether there was any application for leave to bid within a period of three years before the date of the present application, and if so, whether such application can give the Plaintiffs a fresh start; fifth, whether the application of the 10th June, 1895 for postponement of sale was an application to the Court to take some step in aid of execution; and, sixth, whether the decree-holders' opposition to the applications of some of the judgment-debtors to sell the mortgaged property in a certain order gave them a fresh start for reckoning the period of limitation.

On the first point, the broad contention was that, as the subsequent mortgagee is benefited by the execution proceedings, when the property is sold at the instance of the prior mortgagee, he being entitled to the surplus sale-proceeds, his interest is similar to that of the decree-holder, and it is not competent to him, therefore, to take the objection that execution is barred by limitation. But when it was pointed out that if the application was barred by limitation the Court was bound under sec. 4 of the Limitation Act, to disallow it, even though limitation was not set up. The learned vakil for the Respondents changed his ground a little, and urged that although that might have been true, when the case was before the first Court, it was not open to the Appellants in appeal to raise the plea of limitation and ask the Appellate Court to set aside the judgment of the first Court, if it was not competent to the Appellants to raise the plea of limitation. Now, let us see whether this contention is sound. No authority is cited in support of it, and there is not much reason that we can find in its favour. It is true, the subsequent mortgagee is entitled to the surplus sale-proceeds after the mortgaged property is sold at the instance of the prior mortgagee; but if the claim of the prior mortgagee to sell the property could be shown to be barred by limitation, the position of the subsequent mortgagee would not be rendered worse, but would be rendered better: for he would then occupy the position of a first mortgagee. And it cannot, therefore, be said that it was not competent to him to raise an objection which might improve his position. We must therefore decide the first point in favour of the Appellants.

As to the second point, we think the Court below is clearly in error; and the learned vakil for the Respondents does not seriously endeavour to support the judgment appealed against upon the second point. There is no reason for holding that Art. 179 of the second schedule of the Limitation Act does not apply to the application for execution of a mortgage decree. The second point must also be decided in favour of the Appellants.

On the third point, the Appellants' contention is this, that as the judgment-debtors, who are subsequent mortgagees, are liable only to the extent of the properties covered by their mortgage, the decree must be treated as a decree passed severally against them and the original mortgagor within the meaning of the first part of the second paragraph of Explanation (I) to Art. 179 of the Limitation Act; and if that is so, as the previous application was clearly one only against certain judgment-debtors, other than the Appellants, the present application must be barred. We are unable to accept this contention as sound. It is true that the only property that could be brought to sale as against the subsequent mortgagees would be the property mortgaged to them; but the decree does not in any way apportion the mortgaged debt; and it cannot therefore be said, having regard to the terms of the decree, that it comes within the scope of the first part of the second paragraph of Explanation (I). The third point must, therefore, be decided against the Appellants.

Upon the fourth point, if there had been any application by the decree-holders for leave to bid within three years before the date of the present application, then it would have been necessary to consider whether the cases of Raghu Nandan Misser v. Kali Dutt Misser(1) and Toree Mahomed v. Mahomed Mabood(2) have been correctly decided, so far as the question, whether an application by the decree-holders for leave to bid is an application to the Court to take some step in aid of execution, was answered in the negative, and for that purpose to refer the question to a Full Bench. The earlier of these two cases has, I may add, been dissented from by the Allahabad High Court in the case of Bansi v. Sikri Mal(3) and by the Bombay High Court in the case of Vinayakao Gopal Deshmukh v. Vinayak Krishna Dhebri(4), and speaking for myself, I feel bound to say I have considerable hesitation in following the rule laid down by this Court in the two cases cited above, because an application to the Court by the decree-holder to give him leave to bid is to my mind an application to the Court to take some step, that is, to do something which would aid execution, that is, to make it effective by securing a higher price for the property to be sold. But it becomes unnecessary to pursue this discussion any further, as there was no application by the decree-holders for leave to bid on the 10th June, 1895 or on any date within three years before the date of the present application. Though the application of the 1st June was not disposed of until the 10th, it could not be said that circumstance made the 10th the starting point, the time from which limitation runs, under cl. 4 of Art. 179, being in the words of the clause, “the date of applying,” and not the date on which the application is disposed of. The view we take is in accordance with that taken by this Court in the case of Sarat Kumari Dassi v. Jagat Chandra Roy(5), and the Full Bench decision of the Allahabad High Court in the case of Fakir Mahomed v. Golam Hossein(6). The fourth point must, therefore, be decided in favour of the Appellants.

Upon the fifth point, the Appellants' contention is that the application for postponement of sale, such as the one made by the decree-holders in this case on the 10th of June 1895, was not an application to the Court to take some step in aid of execution, but was rather an application to the Court to take some backward step in retardation of execution. Without going so far as to say that there can be no application for postponement of sale which can come within the description of an application to the Court to take some step in aid of execution, we feel bound to say that the application here referred to was clearly not one of that description. The application asked the Court to postpone the sale—why? Because the decree-holders by reason of a change of their manager were not acquainted with all the facts and because several of the properties had been advertised for sale at the instance of the prior mortgagee, and by way of supplement, moreover, because no intending purchasers were present. And the application wound up by praying that the sale might be kept pending for 7 days, and by stating that during the interval all the particulars would be ascertained and then the properties would be caused to be sold. There is no indication here that the decree-holders wanted this postponement with a view to enable them to bring the properties to sale more advantageously for them, as was suggested in the argument. The view we take is in accordance with that taken by this Court in the case of Abdul Hossein v. Fazilun(7). The fifth point must, therefore, be decided in favour of the Appellants.

On the sixth point, the learned vakil for the Respondents contended that the decree-holders' opposition to the judgment-debtors' application to sell the property in a certain order should be held to be an application to the Court to take some step in aid of execution, within the meaning of cl. 4 of Art. 179; and in support of this contention the case of Dharanamma v. Subba(8) has been relied upon, and certain other cases, not quite in point, have also been cited as supporting the same view. We are of opinion that the argument is not correct, and that the cases cited are distinguishable from the present. The words of the law are in our opinion quite clear. To give the decree-holders a fresh start there must be an application to the Court to take some step in aid of execution. Did the decree-holders by simply resisting the judgment-debtors' application to sell the properties in an order different from that in which they had already been directed to be sold, ask the Court to take some step in aid of execution? What they did was to ask the Court to refrain from withdrawing the step in aid of execution, which it had already taken. That cannot be taken to mean an application to the Court asking the Court to take some step which has not already been taken. The step which the decree-holders by their resistance wanted the Court to persevere in taking had already been taken, and the Court was merely asked not to accede to the judgment-debtors' application, which would have had the effect of making the Court refrain from doing what it had already directed should be done. In the Madras case cited the decree-holder's resistance was not of the simple negative character but was coupled with a prayer to sell the property in an order different as well from that in which the judgment-debtors asked that they should be sold as from the order in which the Court had previously directed their sale. That, therefore, might be treated as an application asking the Court to take some positive step, whether it was really and truly in aid of execution or not, we need not pause to consider As for the other cases cited, there an order adverse to the decree-holder had already been made, and then the decree-holder asked the Court to take some step towards further execution, which they thought was the best they could ask the Court to do. That being so, this point also must be decided in favour of the Appellants.

The result is that the order of the Court below must be set aside and this appeal allowed with costs.

The hearing fee is assessed at ten gold mohurs.

Geidt, J.—I concur in allowing this appeal, and agree, generally, in the reasons set forth in the judgment just delivered.

In view, however, of the remarks made by my learned brother, I should like to add that, although the correctness of the decision of this Court in the case of Raghunandan Misser v. Kali Dutt Misser does not properly arise in this case, I do not share the doubt entertained by him on this subject.

There are several routes by which execution of a decree can be attained; and the words “to take some step in aid of the execution of a decree” in my opinion, mean, to reach a further point along one of those routes; or to use the language of this Court in the case of Umesh Chandra Dutt v. Sunder Narain Deo(9) “to obtain some order of the Court in furtherance of the execution of the decree.” I do not regard the removal from the decree-holder of the prohibition to bid as coming within the meaning of the words. The point already reached in the execution of the decree is a sale of property and the removal of the prohibition does not, in my opinion, carry the Court to any further point along the path of execution.

S.C.S

Appeal allowed.