ORDER Thom, C.J. and Ganga Nath, J.
1. This is an execution second appeal which raises an important point of law. A mortgage decree was passed on 5th January 1928. A final decree under Order 34, Rule 5, Civil P.C., was passed in favour of the mortgagees on 9th August 1928. The decree-holders applied for execution of their decree on 19th December 1930. An objection was preferred to the execution application by the judgment-debtors under Section 47, Civil P.C. This objection was dismissed on 15th August 1931. Thereafter the execution application was transferred to the Court of the Collector. On 6th November 1931, one Mt. Tulsa, one of the judgment-debtors, filed a regular suit in which she sought to recover a sum of Rs. 550 on the basis of a receipt, upon which the aforesaid objection to the execution of the mortgage decree under Section 47, Civil P.C., had been preferred. She obtained an order from the Court staying the execution of the mortgage decree pending the result of her suit. Under Order 21, Rule 29, Civil P.C., the Court stayed the execution of the decree "till the disposal of this suit." This order was communicated to the Collector to whose Court the execution proceedings had been transferred. Upon receipt of this order, the Collector returned the record to the executing Court. The learned Munsif on receipt of the record ordered that the papers be filed and consigned to the record room. This order was passed on 3rd February 1932.
2. Mt. Tulsa's suit failed. A final decree of dismissal was passed on 14th February 1933. On 25th July 1935, the decree-holders applied for execution of the mortgage decree against Mt. Tulsa and the other judgment-debtors. The application was opposed by the judgment-debtors who contended that it was barred by time. The learned Civil Judge in the lower Appellate Court has sustained the objection of the judgment-debtors. Following certain decisions to which he refers in the course of his order he has held that the application made on 25th July 1935 having been made beyond three years from the final disposal of Mt. Tulsa's suit it was barred by limitation. In appeal it was contended for the decree-holders that the application of 25th July 1935, should be regarded merely as a step taken by the decree-holders to inform the executing Court that the bar to the execution proceedings had been removed and that it should not be regarded as either a fresh application for execution or an application to revive execution proceedings.
3. The question whether it is necessary for a decree-holder to make an application for revival of execution proceedings after a bar imposed by the Court to these execution proceedings has been removed is one which has not been specifically considered by this Court. It was held by a Full Bench of this Court in Chhattar Singh v. Kamal Singh (1927) 14 AIR All 16 that an application such as the application under consideration in this appeal, was not an application for execution but an application to revive execution proceedings and that it was not governed by Article 181 of Sch. 1, Limitation Act. It appears to have been assumed rather than decided that such a revival application was necessary. The Calcutta, Patna and Madras High Courts on the other hand have taken the view that it is not incumbent upon the decree-holder under the provisions of the Code of Civil Procedure to make any application for revival of execution proceedings upon the removal of a bar to these proceedings. The opinion of these Courts has been that in such circumstances it is the duty of the Court to proceed suo motu. The matter was discussed at length in Krishtokaminee Debi v. Girishchandra Mandal (1936) 23 AIR Cal 239. The only case in which the question now raised was considered by this Court was Prem Narain v. Ganga Ram (1931) 18 AIR All 458. That case was disposed of by a Bench consisting of Sulaiman and Niamtullah JJ. The question now raised was not discussed by Sulaiman J., but Niamtullah J., in the course of his judgment, observes:
It is not in my opinion necessary that a formal application for reviving the proceeding should be made. It is the duty of the Court to proceed to conclusion in a matter pending before it, even though it may be to dismiss the application in default of prosecution. Assuming that an application to 'revive' proceedings is essential I have no doubt that the second application fulfills, in substance, all the requirements of an application for 'reviving' execution proceedings in abeyance. Where it is the duty of the Court to do something or to take some action Article 181, Limitation Act, does not govern an application asking the Court to do such a thing or to take such action.
4. The learned Judge then proceeds to dispose of the question before the Bench for decision upon the assumption that Article 181 was applicable. The expression of opinion above quoted by Niamatullah J. is therefore clearly obiter. The question appears to us to be one of general importance which in our view should be considered and decided by a Full Bench. Let the record be laid before the Chief Justice for the constitution of a Full Bench to dispose of the appeal.
JUDGMENT Thom, C.J.
5. This is a decree-holders' appeal in execution proceedings. The appellants obtained a final decree under Order 34, Rule 5, in a suit upon the basis of a mortgage. They initiated execution proceedings. These proceedings were stayed in circumstances hereinafter set forth. More than three years after the bar imposed by the stay order had ceased to operate the appellants presented an application which has been described in the Courts below as an application for the revival of the execution proceedings. The application was dismissed on the ground that it was time barred. The final decree under Order 34, Rule 5, in favour of the mortgagees who are the appellants was passed on 9th August 1928. On 19th December 1930, the decree holders presented an application for execution. One of the judgment-debtors, Mt. Tulsa, preferred an objection to the application under Section 47, Civil P.C. This objection was dismissed on 15th August 1931. Thereafter the execution Court directed that the application be transferred to the Court of the Collector for disposal.
6. On 6th November 1931, Mt. Tulsa filed a suit in the Civil Court and obtained an order on 28th January 1932, from the Court staying the execution of the mortgage decree pending the result of her suit. The Court stayed the proceedings under Order 21, Rule 29, Civil P.C., "till the disposal of this suit." This stay order was communicated to the Collector who thereupon returned the record to the execution Court. On receipt of the record the learned Munsif passed an order directing that the papers be filed and consigned to the record room. This order was passed on 3rd February 1932. Mt. Tulsa's suit was dismissed on 14th June 1932. An appeal against the order dismissing the suit was dismissed on 14th February 1933. On 25th July 1935, that is more than three years after the dismissal of Mt. Tulsa's suit on 14th February 1933, the appellants, the decree-holders, presented an application praying that their original application be re-transferred to the Collector for disposal. This application was dismissed by the learned Munsif in the execution Court on the ground that it was barred under the provisions of Article 181, Limitation Act. The Munsif's order has been upheld in the lower Appellate Court. The decree-holders have preferred a second appeal in this Court. If the order of the learned Munsif of 3rd February 1932 directing the record to be consigned to the record room had the effect of terminating the execution proceedings then clearly the application of 25th July 1935 is time barred. The application would then necessarily be a fresh application for execution and it was preferred more than three years after the bar had been removed by the dismissal of Mt. Tulsa's suit.
7. We are satisfied that the order of the Munsif directing that the file be consigned to the record room did not determine the execution proceedings. There is no warrant for such an order in the Code of Civil Procedure. It was in fact an administrative order by which directions were given for the custody of the file pending the result of Mt. Tulsa's suit. On the dismissal of Mt. Tulsa's suit, the execution Court, suo motu, could appropriately have recalled the application for execution from the record room and directed that it should be sent again to the Collector for disposal. The effect of such an order as was passed on 3rd February 1932 has been considered in a number of cases in this Court. It is unnecessary to refer at length to the decisions in these cases. Reference may be made however to the cases in Mohammad Taqi Khan v. Raja Ram (1936) 23 AIR All 820; Rama Kant v. Satya Narain (1938)25 AIR All 552; Qamar-uddin Ahmad v. Jawahar Lal (1905) 27 All 334. In the judgments in these and other cases, there is abundant authority for the view which we hold that an order "striking off" an application and consigning it to the record room does not terminate the proceedings in which the order is passed. The Courts below have not treated the application of 25th July 1935 as a fresh application for execution. They have nevertheless held that the application is one to which the provisions of the Limitation Act, and in particular Article 181 Sch. 1 thereof, apply. In other words the Courts below have held that an application to set in motion execution proceedings which have been stayed by the execution Court pending the disposal of a suit is an application which, if not presented within three years of the disposal of the suit, that is from the date on which the stay order has ceased to operate, is barred by limitation.
8. Upon general principle, judicial authority apart, we are unable to agree with this decision. It is to be observed that there is no special provision in the Code of Civil procedure for such an application as was presented by the decree-holders to set in motion the execution proceedings which had been stayed pending the result of Mt. Tulsa's suit. The application was made in proceedings which were still pending and in our judgment in the absence of any special provision such an application cannot be barred by limitation. If such an application were subject to the provisions of Article 181 of Sch. 1, Limitation Act, the anomalous position might result of execution proceedings remaining pending in the execution Court whilst an application to continue these pending proceedings would fail. Whether the execution Court could, in such circumstances, dismiss the execution application for want of prosecution is at least doubtful. There is high authority of this Court however for the view which has been taken by the Courts below. In Ruddar Singh v. Dhanpal Singh (1903) 26 All 156 a Bench of this Court held that Article 178, Sch. 2, Limitation Act 1877, applied to such an application as the decree-holders in the present suit have made to revive execution proceedings. In Chhattar Singh v. Kamal Singh (1927) 14 AIR All 16, a Bench of five Judges held that an application to revive execution proceedings which had been stayed was governed by Article 181 of the Schedule of the Limitation Act of 1908. This decision was followed by a Bench of this Court in Nabban Begam v. Moti Begam (1934) 21 AIR All 294. In Chhattar Singh v. Kamal Singh (1927) 14 AIR All 16 the facts were that the application for revival was made within three years from the removal of the bar imposed by a stay order. The application was held therefore not to be time-barred, but it is clear from the judgment in the case that the Court accepted the proposition that Article 181 of the Schedule of the Limitation Act applied to such an application.
9. There are a number of other decisions to which we do not consider it necessary to refer in detail. In none of the cases decided by this Court however has the question as to whether it was incumbent upon the decree-holder to make an application to set execution proceedings in motion been considered. It appears in every case to have been assumed rather than decided that it was the duty of the decree-holder to make an application after the stay order had ceased to operate and that the provisions of Sch. 1, Limitation Act, applied to such an application. As Sulaiman J. observed in his judgment in Chhattar Singh v. Kamal Singh (1927) 14 AIR All 16:
The application for revival not being a fresh application for execution cannot be governed by Article 182. There is not however any special Article which would apply except the omnibus Article 181. It has been held in several cases that this Article applies to such applications.... When Article 181 applies the period of limitation is three years from the date when the bar to the execution was removed.
10. The argument that the executing Court should have acted suo motu and listed the execution application for disposal on the removal of the bar to the execution does not appear to have been considered. It has been assumed but never specifically decided by this Court in the past that some Article of the Limitation Act must apply. All applications are not governed by the provisions of the Limitation Act. An application to expedite the hearing of an appeal for example is not governed by the provisions of the Limitation Act. An application to set in motion an execution application which has already been made within time and is still pending is in our judgment an application of a similar nature. In the present case, so far as the execution application was concerned, the decree-holders had done everything that was required of them. They had presented their application for execution within time. They had taken all the necessary steps in the execution Court. That Court had sent the application to the Collector for disposal since the property to be sold in execution of the decree was ancestral property. Nothing more was left for the decree-holders to do. It was for the Collector to have acted in accordance with the rules of Chap. XL of the Revenue Manual promulgated by the Local Government under Section 68, Civil P.C. Before the Collector could act in accordance with the provisions of these rules however he was directed by the execution Court to stay proceedings. He accordingly did so and returned the file to the execution Court. When the stay order ceased to operate it clearly was the duty of the execution Court to re-transmit the file to the Collector. If this had been done the Collector would have proceeded to dispose of the application in accordance with the aforementioned rules. It was in fact unnecessary for the decree-holders to have moved in the matter at all. No doubt in their own interests the decree-holders might have brought the fact that Mt. Tulsa's suit had been disposed of to the notice of the execution Court by means of a minute, but there is no statutory provision under which it was incumbent on them to make an application and if therefore they did make an application clearly it was not governed by the provisions of the Limitation Act. It is true that this view is not in accordance with the opinions expressed in the decisions of this Court above referred to. But as we have already remarked the question as to whether it was incumbent upon the decree-holders to move when the bar imposed by the stay order had been removed and whether therefore the provisions of the Limitation Act applied at all to an application to set in motion proceedings which had been suspended was never considered by the Court. We do not consider therefore that the Court is bound to follow these decisions in an appeal where the question has been definitely and specifically raised for the first time. It is no doubt true that if the provisions of the Limitation Act do not apply to an application to set suspended execution proceedings in motion the disposal of these proceedings, it is possible, may be indefinitely delayed. This contingency however can be avoided if the execution Court refuses to stay proceedings sine die. The view which we take that Article 181 of the Schedule of the Limitation Act does not apply to an application to continue execution proceedings which have been stayed has been accepted by the High Courts of Madras, Calcutta, Bombay, Patna and the Chief Court of Oudh. In this connexion we refer to the cases in Pattannayya v. Pattayya (1926) 13 AIR Mad 453; Krishtokaminee Debi v. Girishchandra Mandal (1936) 23 AIR Cal 239, Thana Zalalji Shet v. The shop "Dhana Jawhrji," (1923) 10 AIR Bom 268, Banarsi Prasad v. Kirtyanand Singh (1934) 21 AIR Pat 532 and Narain Baksh Singh v. Shiva Bhikh (1937) 24 AIR Oudh 158.
11. In the result we hold that the appellants' application is not time-barred. The appeal is accordingly allowed and the order of the lower Appellate Court is set aside. The appellants' application will be returned to the execution Court for disposal according to law.