Mahmood, J.:— [The circumstances of this case, so far as it is necessary to state them, are simple and easily set forth. The decree is dated the 6th August, 1878, and the question is whether it is a subsisting decree or whether it is time-barred. Execution was taken out in 1879 and in 1880. Rs. 1,500 were realised, and the remainder being agreed to be paid within a certain time, the case was struck off upon the decree-holder's application. On the 2nd March, 1882, the decree-holder made an application to the Court, stating that Rs. 600 were realized, and asking that the execution-case might be struck off. On the 26th April, 1883, a similar application was made by the decree-holder's heirs, stating that Rs. 400 had been realized. Nothing more was done until July, 1884, and on the 17th July, 1884, the purchaser of the decree presented an application, together with his purchase-deed dated the 9th July, 1884, with the object of getting the transfer to him recognised. The Court of first instance held that neither the application of the 2nd March, 1882, nor that of the 26th April, 1883, was an application within the meaning of clause 4 of the 3rd column of art. 179 of the Law of Limitation. It held that the decree-holder's applications that the receipt of certain sums of money paid out of Court might be certified, could not be regarded as steps in aid of execution. The lower appellate Court reversed this decision, holding that these applications of the decree-holder were steps-in-aid of execution, and this is the sole question we have here to deal with.]
We must, I think, hold that the ratio decidendi of the case of Gansham v. Mukha, where it was held that when the application was made by the judgment-debtor it was a “step-in-aid of execution,” justifies us in the view that when the application is made by the decree-holder, that is equally a step-in-aid of execution, such as will keep the decree alive. S. 257 of the Code shows that a payment out of Court to the decree-holder may be regarded as a payment under a decree; and s. 258 shows how the judgment-debtor and the decree-holder can each take proceedings to have payment out of Court recognized by the Court. The case of T.D Bandyopadhya v. B.L Mukhopadaya seems to me to be exactly applicable to the facts of the present case. I must, however, frankly say that if the matter was res integra, and a matter to be decided on first impression, I should be inclined to consider whether a payment out of Court is more than what its English phraseology denotes. I might, under some circumstances, have considered that matter; but the ruling of this Court and that of the Calcutta Court, that a payment certified by the decree-holder or judgment-debtor is a “step-in-aid of execution,” from which I am not prepared to dissent, renders it unnecessary for me to enter into the question more fully. I hold therefore that the applications of the 2nd March, 1882, and the 26th April, 1883, if the information in them contained was true, were steps in aid of execution within the meaning of art. 179, cl. 4, col. 3 of the Limitation Act. But the judgment-debtor raised a distinct plea that the allegations of payment contained in those applications were wholly untrue. The question whether they were true or untrue has not been tried in the Courts below. Giving the Calcutta ruling above referred to its full force, [11] it is now necessary to ascertain whether the payments notified to the Courts by the decree-holder on the 2nd March, 1882, and the 26th April, 1883, were, in fact, payments by the judgment-debtor, and the case must be remanded to the lower appellate Court under s. 566 of the Code for a finding on the above points.
Upon a return of the findings, ten days will be allowed to the parties for objections.
Tyrrell, J.:— I am by no means satisfied that the applications of March, 1882, and April, 1883, can be considered as “steps-in-aid of execution” in the sense of cl. 4, art. 179 of the Limitation Act; but the view of the lower appellate Court being supported by the authority of a Calcutta ruling, I am unwilling to interfere with its decision so far. The truth of the statements of the decree-holder as to these payments must be ascertained. I concur therefore in the order of remand proposed by Mr. Justice Mahmood.
Issues remitted.