An application for execution, though in form an execution petition, may be considered a step-in-aid of execution, and parties cannot challenge the application as not in accordance with law without applying to set aside the court's order.

1. The question that arises for decision in this case is whether plaintiffs application for the execution of the revised mortgage-decree for sale in O.S. No. 57 of 1909 is barred by/limitation or not. The application was made more than three years from the date of that decree but plaintiff relies on his E.P. No. 17 of 1914 as giving him a fresh starting point under Clause 5 of Article 182 of the Limitation Act. The lower courts have differed in their view on the question whether that petition can be treated as one made in accordance with law for execution or to take some step in aid of execution the Subordinate Judge holding in the affirmative and the District Judge in the negative. The decree-holder is the appellant before us. To understand the nature of his contention it is necessary to state the circumstances in which E.P. No. 17 of 1914 came to be put in.

2. Plaintiff sued the defendants who are members of an Aliya-santhana family for the recovery of her mortgage-money by sale of the defendants family property mortgaged to her and obtained a decree for sale. That decree was an exparte one against the 6th defendant. He applied to set it aside and the Court granted his application on his furnishing security for costs. He accordingly deposited in court a sum of Rs. 500 as security. The case was re-tried but the court again passed a decree in plaintiffs favour. That is the revised decree which is sought to be executed now. That provided that the mortgaged property should be sold and the sale proceeds after defraying the expenses of the sale be applied in paying plaintiff her mortgage amount, interest and costs Rs. 5,379-4-4 and the balance if any be paid to defendants and that if any balance still be due to the plaintiff it be paid by the 1st defendant as Ejman of the family; it also directed the 6th defendant to pay Rs. 22 for plaintiffs costs in the re-trial. In 1914 plaintiff applied against all the defendants to execute the above decree praying that the sum of Rs. 500 paid into court by the 6th defendant be paid out to her towards the decree-amount, That application is the E.P. No. 17 of 1914, referred to above. Notice was ordered to all the defendants; the 6th defendant appeared and opposed but it is not clear from the record before us whether the other defendants appeared or not. The court after hearing arguments directed that the Rs. 500 be paid to the plaintiff on account of costs and towards the partial satisfaction of the decree amount due to her. It may be mentioned that the costs included in the amount for which the property was ordered to be sold are more than Bs. 500. This money was subsequently paid out to plaintiff by the Court on her application. Plaintiffs present application gives credit for it towards the decree-amount.

3. The District Judge holds that E.P. No. 17 of 1914 though in form an execution petition is in substance only an application for payment to the decree-holder of a sum of money deposited in court by one of the judgment-debtors and as such is not an application to take any step-in-aid of execution. He relies on the rulings of the Calcutta High Court in Hem Chunder Choudhury v. Brojo Soondury Dabee (1881) I.L.R. 8 Cal. 89 Fazale Imam v. Metta Singh (1884) I.L.R. 10 Cal. 549, Gunga Pershad Bhoomick v. Debi Sundari Debea (1885) I.L.R. 11 Cal. 227, and Ananda Mohan Roy v. Hara Sundari (1895) I.L.R. 23 Cal. 196 in support of his view, distinguishing the Madras decisions cited to him viz., Venhatarayulu v. Narasimha (1880) I.L.R. 2 Mad. 174, Kerala Varma Valid Rajah v. Shangaram (1892) I.L.R. 16 Mad. 452 and Koormayya v. Krishnamma Naidu (1893) I.L.R. 17 Mad 165:8 M.L.J. 296 on the ground that the money in the present case was not realised by any execution process. That does not seem to be a valid distinction. The District Judge overlooked the fact that as the money was deposited only as security an order of the Court was necessary to make it available for payment towards the decree-amount. A