1877 COOMAR ROY v. BHOGOBUTTY under the Limitation Act, Schedule II, Art. 167, Clause 5, because the last application for execution under Section 212, having CHUNDER been filed on the 21st December 1871, notice under Section 216 was issued on the 17th January 1872, and the time limited for renewing the application is three years commencing from that date. PROSUNNO This appeal is brought to have it determined whether applications subsequent to the 21st December 1871, and in furtherance of the proceedings then set on foot, are not applications to enforce or keep in force the decree. There was an application for attachment of property made, after issue of notice under Section 216, on 1st February 1872. A writ of attachment was issued on 16th, and returned with certificate of execution on the 28th idem, and on the 29th an order was recorded requiring the judgment-creditor to deposit the costs of proclamation of sale within seven days. Up to this time there was nothing that can, on any construction, come within the meaning of the words, application to enforce or keep the decree in force done within three years next before 22nd February 1875. The further proceedings were payment into Court of the costs of proclamation of sale by challan on the 4th March 1872; order for sale on 20th April, and proclamation accordingly; sale on that date, and application on the following day by the decree-holder to take the sale-proceeds out of Court. This last I cannot hold to be an application to enforce or keep the decree in force. As far as the debtor was concerned, the proceedings had terminated,' and the money was held in deposit on account of the decree-holder, who could leave it lying in the treasury or take it out at his own convenience. If this is to be deemed an application within the meaning of the Clause, it is in the power of the creditor to extend his time by not drawing money, which has completely passed from the control of the debtor, and is in fact his own. There remains the payment of money into Court for the purpose of causing issue of proclamation of sale under the order of 29th February. The first question is, whether this was an application at all; the next, whether it was one to enforce or keep the decree in force. 1 Maharaja of Burdwan vs. Lukhee Money Debee, 8 W. R., 359; Juggut Mohenee Bibee. vs. Ram Chand Ghose,9 W. R., 100. VOL. I. ROY AND Case stated. AINSLIE, J. 1877 I think it must be taken that the challan, by which money was CHUNDER tendered for the costs of issue of proclamation of sale, when taken COOMAR ROY in connection with the original application to execute the decree by attachment and sale, and the attachment effected, and order PROSUNNO thereupon, was an application to the Court to proceed with the execution of the decree, it is therefore necessary to go on and try the second question. AND OTHERS v BHOGOBUTTY ROY AND OTHERS. Case stated. The learned Legal Remembrancer, who appeared for the appellant, pointed out the difference of the words used in the first and third columns of the Schedule under Article 167. As to the entry in the first column headed "description of application," it is beyond doubt that the words" for the execution, &c., &c.," apply to applications under Section 212. It was contended that, if the words" applying to the Court to enforce" are meant to be restricted to such applications, the language in the third column would have followed the form used in the first column, and have run as follows, or to the same effect, "or (when the application next hereinafter mentioned has been made) the date of applying to the Court under Section 212, Code of Civil Procedure, to enforce the decree, or otherwise applying to keep it in force." 1 In the parenthesis in the Schedule, the word application is used in the singular, but it is manifest that more than one kind of application is contemplated. The words to keep in force do not apply to an application under Section 212. They may be intended to apply to such applications as those suggested by Mr. JUSTICE MARKBY, in the case in 25 W. R. 546, but with that I am not now concerned. The use of the singular is, therefore, in no way inconsistent with a construction of the words applying to enforce, which shall include more than one form of application. Moreover, the absence of such reference to the Section of the Code as occurs in the next following Clause of the same Article, and the change of expression from application for execution to applying to enforce, may reasonably be presumed to be intentional and to have a purpose, and the construction contended for by Mr. Bell certainly gives effect to the varied form of expression. It cannot be said that the position of the Clauses indicates a restricted construction of the earlier Clause, inasmuch as the later Clause provides for an exten1 Raja Nilmoney Sing Deo Bahadoor vs. Nilcomul Tuppadar. sion of time by reference to a proceeding of later date than 1877 an application for execution; for this is to ignore the application, CHUNDER to keep in force which apparently may be many months, possibly COOMAR ROY three years later than either the application to execute under Section 212, or the notice under Section 216. AND OTHERS V. BHOGOBUTTY Case stated. The law of limitation being a statute in restraint of right must, in case of doubt, be construed favorably to the rights restrained, and it seems to me that any application in furtherance of an application to put a decree into execution may be held to be an application to AINSLIE, J. enforce the decree. If it becomes necessary to apply to the Court to take some further step in execution proceedings already started, that is, really an application to enforce. The reported cases on this Article of the Schedule brought to my notice are not numerous; and of these only two directly bear upon the present question. These are the cases in 23 W. R., 282, decided by JACKSON and McDONELL, J.J., and in 25 W. R., 546', by MARKBY and McDONELL, J.J. The other cases brought before me were the following: 21 W. R., 3093; 22 W. R., 512'; 23 W. R., 1835; 24 W. R., 2276; 25 W. R., 947; 1. L. R. Bombay 59. I will examine these. First, 21 W. R., 309,3 decided by COUCH, C.J., and JACKSON, J. This case only decides that, as the application relied on was not an application under Section 212, it did not serve to keep the decree in force. It was said that the provision in Article No. 167 must be held to require an application to be in accordance with Section 212. That is the least that must be done, supposing that the decisions about bona fides should be held to be not applicable now. All that can be gathered from the report is, that the decreeholder was probably relying on some informal application for execution, and not on an application following and subsiduary to a 1 Faiz Buksh Chowdhry vs. Sadut Ali Khan. * Raja Nilmony Sing Deo vs. Nilcomul Tuppadar. * Gouree Sunkur Tribedee vs. Arman Ali Chowdhry. 143. Eshan Chunder Bose vs. Prannath Nag, also reported in 14 B. L. R., Baboo Pyaroo Tuhobildarinee vs. Syud Nazir Hosein. • Shaikh Subhan Ali vs. Shaikh Sufdar Ali. * Abdool Hakeem vs. Shaikh Aseatoollah. 1877 regular application under Section 212. The report does not state CHUNDER the facts. But this is the view of the case taken in the Bombay case, to be referred to hereafter. COOMAR ROY V. BHOGOBUTTY Case stated. The next case reported in 22 W. R., 512,' was decided by a Full Bench. The case was referred to a Full Bench by JACKSON and MCDONELL, J.J. In the referring order Mr. JUSTICE JACKSON, said that it had been pressed on them that because every application made after the period of limitation prescribed for it must fail; AINSLIE, J. therefore, conversely, every application made within that period is a good application to stop limitation runnnig; and that another Bench (MARKBY and MITTER, J.J.) had held that this is now the law, and that all questions of bona fides are excluded. Pointing out the resulting unlimited delays that might be brought about, he asked for a decision in the question whether the law, as it now stands, excludes questions of bona fides. The Full Bench uuanimously held that the provisions of the present law are absolute and irrespective of any question of bona fides. I may observe (though it refers more properly to an earlier part of this order) that Mr. JUSTICE JACKSON expressly rests his judgment on the ground that the silence of the Legislature on the question of bona fides must be taken to have been intentional. 2 The next case cited, 23 W. R., 183, is scarcely connected with the present question in any way, and I shall pass it by as immaterial. 3 The case reported in 24 W. R., 227, is also unimportant. Apparently there was nothing which could be called an application after the issue of notice under Section 216 on the 15th April 1871 up to 20th July 1874, when the fresh application for execution was put in, though the former case was not struck off the file till 24th August 1871. 25 W. R., 94, MACPHERSON and MORRIS, J.J. :— The former application was on 31st October 1868; notice was issued, 20th November 1868, and the new application was on 1 Eshan Chunder Bose vs. Prannath Nag, also reported in 14 B. L. R., 143. 2 Baboo Pyaroo Tahobildarinee vs Syud Nazir Hosein. • Shaikh Subhan Ali vs. Shaikh Sufdar Ali. • Abdool Hakeem vs. Shaikh Aseatoollah. 28th November 1871. A petition of 12th December 1868 was 1877 b AND OTHERS v. relied upon as sufficient to save the case from the operation of CHUNDER the Statute, but this was rejected on the ground that the COOMAR ROY decree-holder did not thereby apply to enforce execution; he simply BHOGOBUTTY prayed that the matter of the execution applied for on 31st October PROSUNNO 1868 should be disposed of along with an application for an execution he had made in another suit. I. Indian Law Reporter, Bombay, 59. The last application for execution was on February 1868, the proceedings thereon lasted till 10th September 1871, when they were brought to a close by an order setting out that all the money due had been received, except Rs. 20-13-3, which there was then no prospect of realizing. On the 30th September 1871 a petition was put in, which was afterwards relied on as bringing the next application for execution made on 19th October 1872 within time. The Court citing the Calcutta case in 21 W. R., 319, held that it was not an application to execute at all, and was itself out of time. I now come to the two cases directly on the question before me. The second merely follows the first, and it will be convenient to notice it first. In 25 W. R., 546' (MARKBY and McDONELL, J.J.) :— The application to execute was made on 29th December 1873; the last previous application was on 10th September 1870; a notice under Section 216 issued on this, the date is not given, but it seems to have been admitted that it was not within three years. It was suggested that further proceedings might have been taken, but this was not enquired into. Mr. JUSTICE MARKBY, in delivering judgment said:" The case in 23 W. R. decides that under the new law of limitation when proceedings have been had subsequent to the application to execute the decree and to the issue of notice, limitation does not run from the date of any such subsequent proceedings, but only from the date of the first application to execute the decree, or from the notice, as the case may be, that is a decision of Division Bench of this Court in which Mr. Justice .McDONELL was a party, and I should not feel justified in departing from it." This brings me to the last case to be noted, the one in 23 W. R., 1 Raja Nilmony Singh Deo vs Nilcomul Tuppadar. ROY AND OTHERS. Case stated. AINSLIE, J. |