Harington, J.:— This is an application for the execution of a decree made on the 12th of December 1889.
The Plaintiff who obtained the decree died on the 21st of March 1896 leaving Dhun Daye Bibee his executrix. She died on the 21st of March 1901 leaving Jamuna Daye Bibee her sole heiress.
On the 12th of December 1901, precisely twelve years after the date of the making of the decree, Jamuna Daye applied for execution. She had not obtained letters of administration, her application was therefore refused, but she applied for letters of administration on the same day, and the order was made that letters of administration should issue to her whereupon she renewed the application for execution of the decree of the 12th of December and notice was ordered to issue under secs. 232 and 248, C.P.C
After notices had issued she died and no order was made for the execution of the decree, owing to her death proceedings were dropped.
On behalf of the judgment-debtor it is urged that this application is barred by limitation.
By Art. 180 of the Limitation Act it is provided that the decree must be enforced within 12 years of the making of it, unless there has been a revivor or past payment of interest or principal due under the decree or an acknowledgment by the person liable under the decree.
On the part of the applicant it is contended that there has been a revivor created by the application made on the 12th of December 1901 and by the notice issued there under.
The case of Ashutosh Dutt v. Doorga Churn Chatterjee and several cases were cited in support of the proposition that an order for execution operates as a revivor, but it is unnecessary to examine these cases because in the present case there is no order for execution. There is no authority for the proposition that the fact that an application has been made and notices have been issued to the judgment-debtor under secs. 232 and 248 of the Civil Procedure Code creates a revivor of the decree.
The principle on which an order for execution operates as a revivor is found in the judgment delivered in the case of Suja Hossain v. Honohur Das which is based on the ground that the order is made after notice on the judgment-debtor to show cause; and after hearing both parties, if they desire to be heard.
The order made gives a right to execute the decree and from that fresh starting point the time must run. It thus operates as a revivor of the right to execute the decree.
In the present case the Court has made no order between the parties deciding. The question is whether there is a right to execute the decree as the proceedings were dropped before any order was made.
There being no order, there is no revivor.
The applicant has failed to show that the time to execute the decree has been extended by revivor but he has alleged an acknowledgment in writing which has been denied by the judgment-debtor.
The case will be set down, if the parties so desire it, for the trial of the issue as to whether an acknowledgment sufficient to take the case out of the Limitation Act has or has not been given.
I reserve the costs.
Bobu Subodh Chunder Mitter, Attorney for the Defendant.
Mr. M. Remfry, Attorney for the Plaintiff.
A.N.C