JUDGMENT

Misra and Madeley, JJ. - This is a decree holder's appeal against the dismissal of his execution application by the Civil Judge of Malihabad at Lucknow on the ground that it was barred by time.

2. A simple money decree for Rs. 2,46,203- 11-0 was obtained on 6th May, 1931 against Khan Bahadur Mohammad Ali Khan by Raja Bahadur Bishnath Saran Singh of Tiloi whose estate has since been taken under the Court of Wards and is now represented by the appellant, namely the Deputy Commissioner Rae Bareli as Manager Court of Wards in charge of Tiloi estate. The decree-holder's first attempt to execute his decree in ;1932 proved to be abortive. In 1932 a payment of Rs. 44,129-7-3 was made by the judgment-debtor. Khan Bahadur Mohammad Ali Khan died on 3rd February, 1935, and on 10th October, 1936 the decree-holder applied for substitution of Nawab Ali Raza Khan and Sardar Newazish Ali Khan as the legal representatives of the original judgment-debtor and for a transfer certificate after substitution to the Court of Civil Judge Bahraich u/s 39, C. P. C. On 6th April, 1937, the proposed legal representatives, though apparently served, did not appear in the Court of the Civil Judge, Malihabad to raise any contest. The substitution was accordingly made on that date, and on 15th April, 1937, the decree was transferred for execution to the Court of Civil Judge Bahraich. The Deputy Commissioner, Rae Bareli. presented his execution application in the Bahraich Court on the 14-th January, 1938, but it was consigned to records on 17th February, 1938. It seems that the certificate of non- satisfaction was not sent by the Bahraich Court to the Civil Judge Malihabad at Lucknow for a long time, and we have been unable to ascertain from the record the reason for the delay. On 2nd June, 1938, Newazish Ali Khan, one of the legal representatives of the deceased judgment- debtor, presented a petition in the Court of the Civil Judge Malihabad for setting aside the substitution order of the 6th April, 1937 on the allegations that he was not in fact the legal representative and that there was sufficient cause for his absence on the date of hearing inasmuch as he was not served with any notice of the hearing of the decree-holder's application. The prayer was stoutly opposed by the Deputy Com- missioner, Rae Bareli, through a written reply filed by him on 19th November, 1938. Various steps were taken for controverting the allegations of Sardar Newazish Ali Khan, and finally the Civil Judge of Malihabad after considering the oral and documentary evidence produced by the parties came to the conclusion that the certificate was sufficient and that the applicant was in fact the legal representative of the de- ceased judgment-debtor. By his order, dated 17th December, 1938 therefore he rejected the previous order of the 6th April, 1937.

3. The transfer certificate was received back in Lucknow with a certificate of non-satisfaction from the Bahraich Court on 30th July, 1941, and the Lucknow Court thereupon ordered :that on that date the result should be noted and the. case be con- signed to records along with the file received.

4. The Deputy Commissioner, Rae Bareli, then filed his next execution application, out of which this appeal arises, on 31st May, 1941. Sardar Newazish Ali Khan objected to the execution on the ground of limitation, and his objections were upheld by the lower Court with the result . that the decree-holder's application was dismissed as time-barred. The Deputy Com- missioner, Rae Bareli, in his appeal against the aforesaid order challenges the decision of the Court below and after a careful consideration of the arguments in the case we are of opinion that his appeal must succeed.

5. Article 182 in the First Schedule of the Indian Limitation Act prescribes " period of three years for execution of a decree. One of the starting points of this period of limitation is laid down in clause (5) as follows

(where the application next hereinafter mentioned h