ORDER : This is a revision under S. 115, C.P.C. by Uma Shankar Mehrotra against the order dated 5-12-1962 of the First Civil Judge of Kanpur, framing two issues for trial and determination as necessary under O. XXI, R. 50(2). C.P.C.

2. The material facts of the case are that Messrs. Kanodia Brothers Kanpur, obtained an ex parte decree against Messrs. S. Varma, Kanpur for the recovery of a sum of Rs. 11,500. Messrs. S. Varma, defendant, was to be served through the proprietors. Bhupat Prasad and Uma Shankar Mehrotra. They put in appearance, but Uma Shankar Mehrotra denied to be a partner or proprietor of the defendant-firm. The ex parte decree was passed on 6-7-1955. It was on 27-7-1957 that the decree-holder applied for execution of the decree by the attachment of the salary of Uma Shankar Mehrotra on the supposition that the case was covered by Cls. (b) and (c) of O. XXI. R. 50(1), C.P.C. The executing court recorded the finding that without the grant of the leave under sub-rule (2) of O. XXI. R. 50, C.P.C., the execution could not proceed against Uma Shankar Mehrotra and this order was eventually maintained.

It was thereafter on 29-8-1961 that the decree-holder made a fresh application for execution of the decree by the attachment of the salary of Uma Shankar Mehrotra and at the same time moved an application under O. XXI, R. 50(2), C.P.C. for the grant of leave to proceed against Uma Shankar Mehrotra, on the ground that he was a partner in the defendant-firm, Messrs. S. Varma. The learned Civil Judge entertained this application and framed the following two issues :-

(1) Whether Sri Uma Shankar Mehrotra is a partner in the firm Messrs. S. Varma ?

(2) Is the decree-holder entitled to cause the decree to be executed against Sri Uma Shankar Mehrotra as such ?

(3) Uma Shankar Mehrotra has come up in revision against this order on the ground that the application under O. XXI, R. 50(2), C.P.C. was barred by limitation. It is contended that such an application shall be governed by Art. 181 and not Art. 182 of the Limitation Act. A new ground is also sought to be raised in the revision; namely, that even if the application is governed by Art. 182, it is barred by limitation considering that the decree-holder is not entitled to the extension of limitation by virtue of his having moved the execution application on 27-7-1957.

4. The decision on the new point, though relating to limitation, depends upon facts also, and it shall be proper to leave this question open, all the more, when it is open to Uma Shankar Mehrotra to raise at a proper stage the question whether the Second execution application moved on 29-8-1961 is or is not barred by limitation.

5. The point for consideration in this revision, therefore, is whether an application for leave under O. XXI, R. 50(2), C.P.C., if governed by the provisions of the Limitation Act, comes within the purview of Art. 181 or Art. 182 of the Limitation Act. In case such an application is governed by Art. 181, it shall be clearly time-barred as the application was made more than three years after the accrual of the right to apply; but if the application is governed by Art. 182 or there is no limitation for such an application it shall be maintainable provided that the execution application is not barred by limitation.

6. Article 181 is a general clause applicable to applications for which no period of limitation is provided elsewhere in the First Schedule of the Limitation Act or by S. 48 of the Code of Civil Procedure, 1908. This Article shall thus come into operation only if Art. 182 is not applicable, and the application cannot be made at any stage of the execution of the decree.

7. Article 182 lays down the period of limitation of an application for the execution of a decree or order of any civil Court not provided for by Art. 183 or by S. 48 of the Code of Civil Procedure, 1908. Time from which period begins to run is detailed in Column 3 of the First Schedule. Clause 5 thereof distinguishes betwee

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