The main legal point established in the judgment is the interpretation and application of Article 182, Clause 5 of the Limitation Act in determining the limitation for execution applications.

Lakshmana Rao, J.

1. This appeal arises out of an application for transmission of the decree in O.S. No. 72 of 1922 on the file of the Subordinate Judge of Cocanada for execution to the District Court of South Arcot and the questions for determination are (1) whether the application is barred by limitation against the appellant (defendant 3) and (2) whether the decree is executable against him. Respondent 1 is the decree-holder and the suit was for recovery of Rs. 28,374-11-9 due under two promissory notes executed by the appellant and respondents 2 and 3. The appellant pleaded that he was a surety and the suit was decreed on 19th February 1923 as follows:

It is ordered and decreed that the plaintiff (respondent 1) do proceed against defendants 1 and 2 (respondents 2 and 3) in the first instance and against defendant 3 (appellant) in case the amount cannot be releted from defendants 1 and 2 and do recover Rs. 26,777-4-9 with further interest and proportionate coats.

2. A sum of Rs. 3,652-4-1 was realised by 1926 by executing the decree against respondents 2 and 3, and two applications were filed by the decree-holder on 18th January 1927 for transmission of the decree to the District Munsifs of Kovvur and Rajahmundry for simultaneous execution against respondents 2 and 3. The applications were ordered on 20th January 1927 and decree copies were transmitted to the District Munsifs of Kovvur and Rajahmundry. No steps were however taken at Kovvur or Rajahmundry and an application for transmission of the decree to the Sub-Court of Vizagapatam for execution against respondents 2 and 3 was filed in the Sub-Court of Cocanada on 20th January 1930 (18th and 19th January being holidays). It was alleged in the petition that the decree copies transmitted to the District Munsifs of Kovvur and Rajahmundry had been returned, though in fact only the decree copy sent to the District Munsif of Kovvur had been returned, and the application was defective in other respects as well. So it was returned on 23rd January 1930 for amendment, and the decree holder applied for and obtained time for that purpose on several occasions. The application was returned for the last time on 9th October 1930 and it was not represented thereafter. The application out of which this appeal arises was filed on 27th September 1932 for transmission of the decree to the District Court of South Arcot for execution against the appellant and respondents 2 and 3, and the latter did not appear. It was not alleged in the application that the decree amount cannot be realised from respondents 2 and 3 and the appellant pleaded that the decree cannot be executed against him until then. Even otherwise he contended that the application of 20th January 1930 was not made to the proper Court and cannot save limitation, but the Subordinate Judge overruled the plea of limitation on the ground that the present application was filed within three years of the prior application. The contention that the prior application was not made to the proper Court and cannot save limitation was not considered, and though evidence was not led, and there is nothing on record to show that the decree amount cannot be realised from respondents 2 and 3, the Subordinate Judge negatived the other plea on the ground that the decree does not say that the decree-holder should exhaust the properties of respondents 2 and 3 before proceeding against the appellant, and that the time for executing the decree against the appellant had arisen in 1932 when the decree, holder was obliged to take out the execution against him.

3. Hence this appeal and it was argued first, that assuming the decree to be executable against the appellant, the application of 20th January 1930 cannot prevent time from running and the present application was barred by limitation against him. Article 182, Clause 5, Limitation Act, which was relied upon by the decree-holder, allows three years from the date of the final order on an application ma