JUDGMENT

1. This appeal has been referred to a Bench of two Judges by one of the learned Judges of this Court. The question for decision is whether the proceedings of 27th July 1920 in execution of a decree save limitation. On 21st June 1920 the decree-holder applied by a written application for execution by arrest of the judgment-debtor. A notice was issued under Order XXI, Rule 22, because the application was made more than a year after the date of the decree and also under Rule 37 to enable the judgment debtor to show cause why he should not be committed to the civil prison. This order was passed on the 23rd of June and the notice was returnable on the 27th of July. The order on the order-sheet under date 27th July 1920 is as follows:

2. "Parties are present in person. The judgment-debtor put in an objection under Section 47 of the Code of Civil Procedure and this objection was dismissed. The decree-holder desires the issue of a warrant of arrest, therefore it is ordered that on receipt of process-fee and costs of arrest a warrant of arrest may be issued to the judgment-debtor returnable on 19th August 1920.

3. It is clear from this order that there was an oral application made for the arrest of the judgment-debtor by the decree-holder on 27th July 1920. The executing Court appears to have forgotten that on 27th the notice relating to arrest was to be determined. Its attention was only confined to the objection made by the judgment-debtor, which had nothing to do with the question of his arrest. Presumably the judgment-debtor cleared out of Court and the decree-holder had to make an application to get the judgment-debtor arrested. If no such application had been made on 27th July the Court would have forgotten all about the matter and no orders would have been passed with respect to the judgment-debtor's arrest. On behalf of the appellant they have quoted us the following rulings:

Raja Dalip Singh v. Thakur Durga Bakhsh S.C. No. 185, Juggi Lal v. Ganga Prasad [1911] 14 O.C. 125, Manna Lal v. Sardar Singh [1918] 20 O.C. 332 and Malukchand Ratanchand v. Bechar Natha [1901] 26 Bom. 639.

4. We have examined these cases and in every one of them the Court came to the conclusion that there was no application, oral or written, to the proper Court to take some step-in-aid of execution of the decree. In the case reported in 14 Oudh Cases the learned Judge took special care to note that no fresh application was made on 29th April when the decree holder's agent merely appeared to support the application for arrest and in the language of Court pressed it. For this reason the learned Judge was unable to hold that there was an application to the Court on 29th April to take a step-in-aid of execution. In the case reported in 20 Oudh Cases the learned Judge said at page 333 last para:

5. I may say at once that from the record it does not appear that anything more was done on the 30th January 1914 than depositing, in the Court, of the process-fee by the decree-holder. The record itself does not set out that any application oral or otherwise, was made to the Court, asking the Court to take step-in-aid of execution."

6. The learned Judge does go beyond the facts of the case and holds that where there is an application or request made to the Court by way of jogging the Court's memory or repeating a prayer, which had already been made, it should not be considered to be an application to the Court to take steps-in-aid of execution. We are not prepared to go to that length. Under the law we have only to inquire whether there was an oral or written application or not to the proper Court to take some step-in-aid of execution. If in the present case the decree-holder had merely been present to press his former application and the Court had passed an order of arrest as a determination of the former application, we would have held that there was no application to take a step-in-aid of execution and that limitation was not saved on 27th July 1920. In the