The main legal point established in the judgment is the application of limitation in the execution of a decree, particularly in the context of previous applications and the provisions of Section 78(2), Provincial Insolvency Act.

Ananthakrishna Iyer, J.

1. The application filed by the decree-bolder oa 17th March 1932, for execution of the decree in S.C.S. No. 234 of 1932, has-been dismissed by the learned District Munsif on the ground that execution of the decree is barred by limitation. The learned District Munsif held that E.P. No. 173 of 1930, should not be taken to be a step in aid of execution, because the defendant was an undischarged insolvent at that time. In this revision petition filed by the decree-holder, it is argued that there was Article I.A. No. 424 of 1930 filed by the decree-holder on 23rd July 1933, for leave to execute the decree against the defendant under Section 28(2), Provincial Insolveney Act, and that leave was granted to the decree-holder on 26th August 1930. It is argued by the petitioner decree-bolder that assuming that E.P. No. 173 of 1930 would not be available, as the starting point for limitation yet;,, as I.A. No. 424 of 1930 was filed within three years of final orders passed on 5th January 1928, in the previous I.A. No. 210 of 1927, the present application was not barred as it was filed within three-years from the order passed on I.A. No. 424 of 1930. As the respondent is unrepresented, the learned advocate for the petitioner very properly (and I am obliged to him for that) drew my attention to the fact that in Kuppuswami Chettiar v. Rajagopala Aiyar A.I.R. 1922 Mad 79, it was decided by a Bench of this Court that an application to be a step-in-aid of execution should be made in a pending execution application. Ramesam, J.s view to the contrary in Sankara Nainar v. Thangamma A.I.R. 1922 Mad. 247, was dissented from by the learned Judges in Kuppuswami Chettiar v. Rajagopala Ayyar A.I.R. 1922 Mad 79. In Krishna Pattar v. Seetharama Pattar A.I.R. 1928 Mad. 1178 however the learned Judges seem to be inclined to hesitate to accept the view indicated in Kuppuswami Chettiar v. Rajagopala Ayyar A.I.R. 1922 Mad 79 and remarked that if they really had to decide the question they should hesitate to accept that decision without further consideration of the matter in the light of the decided cases in our Court which have not been referred to in the decision in Kuppuswami Chettiar v. Rajagopala Ayyar A.I.R. 1922 Mad 79. The learned Judges were however able to dispose of the matter before them in Krishna Pattar v. Seetharama Pattar A.I.R. 1928 Mad. 1178. Having regard to the observations at p. 54 (of 50 Mad.) referred to above, I refer this civil revision petition to a Bench for disposal. At the request of the learned Counsel for the petitioner, and seeing that 12 years from the date of the decree would expire in a few months, this civil revision petition will be posted before a Bench nest week.

JUDGMENT

2. The petitioner in this case obtained a decree in Small Cause Suit No. 234 of 1932 on the file of the District Munsifs Court, Calicut. The decree was subsequently transferred for execution to the Court of the District Munsif, Vayitri. An execution petition, E.P. No. 1480 of 1932 dated 17th March 1932, was put in and was dismissed on the ground that it was barred by limitation. This revision petition has been preferred against that order. It came before Anantakrisbna Ayyar, J., and on account of a difference in opinion between the view taken in Sankara Nainar v. Thangamma A.I.R. 1922 Mad. 247 "that an application to be a step-in-aid of execution need not be made in a pending execution application" and a doubt thrown upon that view in Krishna Pat. tar v. Seetharama Pattar A.I.R. 1928 Mad. 1178, he referred the matter to a Bench.

3. It is necessary to state some further faots. It is not disputed that up till the date when E.P. 210 of 1927 dated 12th November 1927, was filed in the Court of the District Munsif, Vayitri, execution proceedings had been kept alive. That petition was dismissed on 5th January 1928, because the judgment-debtor bad applied to be adjudged an insolvent. The exact date of the insolvency does not appear on the