282' (JACKSON and McDONELL J.J.) which governed the case CHUNDER just cited. 1877 62 COOMAR ROY AND OTHERS v. BHOGOBUTTY The application before the Court was in September 1873, the last proceeding one in August 1870; it was urged that under that appliPROSUNNO cation proceedings had been taken, property sold and money recovered, but it was held that "the Act does not allow limitation to run from the date of such proceedings, but only from the date of the application." ROY AND Case stated. Why the Court held the applications to enforce a decree mentioned in Art. 167, Clause 4, to be limited to applications under Section 212, is not stated. That the decisions, as far as they go, run one way must be admitted, but the principle of construction has been discussed in none of them; and with the greatest respect for the opinion of my learned brother Markby, I think I shall not be uselessly wasting the time of the Court by placing the question which it is of immense importance to get finally settled before a Full Bench. The applications I refer to as subsidiary, and in furtherance of the enforcement of a decree, and which appear to me to be applications to enforce within the meaning of Clause 4, Art. 167, are such applications as for attachment after issue of notice, for proclamation of sale after attachment, for further proclamation after temporary stay of proceedings: in short, all applications, the expressed purport of which is to procure something to be done by the Court which is necessary to carry into effect, give force to, or enforce the primary application for execution under Section 212. I use the words expressed purport designedly to avoid any doubt, whether I am not coming into conflict with the Full Bench decision in 22 W. R., 512. I do not mean to raise any question of the bona fides of the petitioning decree-holder. If the terms of any application subsidiary to, and in furtherance of, an application under Section 212 set out and ask for something which is material to the progress of the execution, as at present advised. I believe it to be a sufficient application under the limitation law. The question then may be stated in the following terms. Un- 1877 CHUNDER der the terms of Clause 4, Art. 167, Schedule II of the Limitation Law, is not an application to the Court to have something done for the purpose of carrying on and giving effect to a pend- COOMAR ROY ing application for execution of a decree made under Section BHOGOBUTTY AND OTHERS v. 212 of the Code of Civil Procedure an application from the date PROSUNNO of which a fresh period of limitation runs? It is scarcely necessary to say as the order of reference implies it that in my opinion the question of limitation was open for consideration by the Judge, that an admission by one of two codebtors could not operate to prevent his giving effect to Section 4 of the Limitation Law. MORRIS, J.: I think that the question raised by my learned colleague as to the effect of Clause 4, Art. 167, Schedule II of the Limitation Act, should very properly be referred for the decision of a Full Bench of this Court. The judgment of the FULL BENCH' was delivered by ROY AND GARTH, C.J.-We are of opinion that " applying to enforce the GARTH, C.J. decree" in Art. 167 means the application (under Section 212, Code of Civil Procedure or otherwise) by which proceedings in execution are commenced, and not applications of an incidental kind made during the pendency of such proceedings. But we also think that some meaning must be given to the alternative expression "keep in force," occurring in the same Article, and that consequently in cases governed by Act IX of 1871 a decree-holder, who has applied to the Court simpliciter "to keep the decree in force," may, within three years from the date of such last-named application, obtain execution of his decree. AINSLIE, J.: I accept the decision of my learned colleagues as the proper answer to the question put. 1 GARTH, C.J., JACKSON, MACHPERSON, MARKBY and AINSLIE, J.J. AINSLIE, J. 1877 CHUNDER COOMAR ROY AND OTHERS v. BHOGOBUTTY ROY AND OTHERS. GARTH, C.J.:— The case will be sent back to the Division Bench for disposal. Note.-Act IX of 1871 has since been repealed. The present law of PROSUNNO limitation (Act XV of 1877) Schedule II., Art. 179, Clause IV, declares that limitation in such cases shall begin to run from the date of applying in accordance with law to the proper Court for execution, or to take some step in aid of execution, of the decree or order. Section 230 of the New Code of Civil Procedure (X of 1877) lays down some special rules for limitation in the execution of decrees which should not be overlooked. Special Appeal.-Act XXIII of 1861, Section 27-Question of title incidentally tried. The fact that a question of title to immoveable property may have been incidentally tried does not give a right of Special Appeal in a case cognizable by a Small Cause Court for a matter valued at less than 500 rupees. SPECIAL PECIAL Appeal from the judgment of the Deputy Commissioner of Hazaribaugh, dated the 18th March 1875, affirming that of the Extra Assistant Commissioner, dated the 15th December 1874. For Defendants, Appellants: Baboo Roop Nath Banerjea. The case was referred to a Full Bench by MARKBY and PRINSEP, J.J., in the following terms : We are of opinion that this is a suit, for damages under Rs. 500, and as such it is cognizable by a Court of Small Causes under Section 6 of Act XI of 1865. It is contended, however, for the appellants, that a special appeal is not barred by Section 27 of Act XXIII of 1861, inasmuch as a question of title to land was raised and tried in the suit. This contention of the appellant is contrary to the decisions reported in the 3 B. L. R., 96 App., and 10 W. R., 78. There are, however, two decisions of this Court which support this contention. One is reported in 4 W. R., 60, and the other in 15 W. R., 557. These two decisions are also supported by two decisions of the High Court of Bombay (2 Bo. 4, and 6 Bo. 12). 1 Since repealed. See s. 586, Act X of 1877. E 1877 July 20. 1877 The question is one of importance, and we therefore refer it to MOHESH MA. a Full Bench. The question is whether, having regard to the provisions of Section 27 of Act XXIII of 1861, a special appeal lies to this Court in a suit of the nature cognizable by a Court of Small Causes, where a question of title to immoveable property has been raised and tried in the Courts below. HATO AND ANOTHER v. SHEIKH PEEROO. GARTH, C.J. The judgment of the Court' was delivered by Garth, C. J.—We are of opinion that, as this was a suit cognizable by the Court of Small Causes, no special appeal lies to this Court, although a question of title may have been incidentally raised in it. The appeal will, therefore, be dismissed. 1 GARTH, C.J., JACKSON, MACPHERSON, MARKBY, and AINSLIE, J.J. |