JUDGMENT

Dunkley, J - In my opinion this appeal fails on the question of limitation, and therefore it is unnecessary to decide the other points which have been raised in the prosecution of the appeal. The defendant-respondent, S.E. Bholat, filed a petition in the District Court of Myingyan on 24th April 1929 for the adjudication as insolvent of his debtor, Ayakalai Nadar. On 10th May 1929 he made an application, under Section 31(2), Provincial Insolvency Act, for the attachment by actual seizure of goods lying in his debtor's shop at Taungtha. This application was allowed and a warrant of attachment was issued, and it was executed and the goods seized on the same day. On 16th May 1929 the present appellant, M.S. Ponnaswamy Pillai, made an objection, under Section 4, Provincial Insolvency Act, to this attachment and seizure, alleging that the property seized had been sold to him sometime previously and was in his possession as'his own property at the time of the seizure. At the same time he and, some other creditors of the debtor, Ayakalai Nadar, joined with the latter in objecting to the latter's adjudication. The question of adjudication of Ayakalai Nadar and the appellant's objection to the attachment and seizure of these goods were heard and decided together, and after a prolonged hearing, by a judgment dated 10th February 1931, the learned District Judge rejected the respondent's petition to adjudicate Ayakalai Nadar, and also held that the property seized was the property of the appellant, and ordered the removal of the attachment.

2. On 8th May 1931 Civil Miscellaneous Appeal No. 70 of 1931 of this Court was instituted by the respondent. It was against the dismissal of his petition to adjudicate Ayakalai Nadar, the present appellant was joined as a respondent in this appeal because he had objected to the adjudication. There was no appeal against the order of the learned District Judge holding that the property attached and seized was the property of the appellant and removing the attachment thereon. On 11th January 1932 this appeal was dismissed by a Bench of this Court. On 27th April 1932 the appellant instituted suit No. 9 of 1932 of the Sub-divisional Court of Myingyan against the respondent, claiming damages for the unlawful attachment and seizure of these properties and it is out of this suit that the present appeal arises. The appellant was partially successful before the Sub-divisional Court, but on appeal to the District Court his suit was dismissed.

3. All the above dates so far as they are relevant to the question of limitation, are set out in the appellant's plaint in this suit, and in para. 9 thereof, in order to prevent the operation of the provisions of the Limitation Act, he called in aid the proceedings subsequent to the attachment and seizure of the goods in the District Court and in the High Court and set up that he was entitled to deduct the time spent in prosecuting these proceedings. On behalf of the appellant a preliminary objection has-been raised that the question of limitation could not be considered by the District Court on appeal, and also cannot be considered by this Court on second appeal because the point was abandoned by the respondent in the original Court. No doubt, it is stated in the judgment of the learned Sub-divisional Judge that the question of limitation in the suit before him was abandoned by the defendant, that is, the present respondent, but actually it was mentioned by the respondent in his written statement, and the question is included by implication in the first issue framed in the suit, which is: "Is the suit maintainable?" But however that may be, in my opinion, the provisions of Section 3, Limitation Act, are applicable to the present case and therefore it was incumbent upon the Sub-divisional Court of its own motion to consider the question of limitation whether it was abandoned by the defendant or not. Consequently, even though the respondent did not argue this point befor