Beverley, J.

1. This is an appeal from an order of the Subordinate Judgeof Hooghly, disallowing an objection to the execution of a decree on the groundof limitation.

2. The decree was made ex parte on the 30th May 1888, andwas for arrears of rent not exceeding Rs. 500. An application to execute thedecree (No. 219 of 1889) was made on 27th May 1889, and certain property wasattached; but on the 31st August, the day fixed for sale, the judgment-debtorapplied to have the ex parte decree set aside, and pending the disposal of thatapplication, the sale was stayed. On the 31st October 1889, the Court made afurther order striking the execution case off the file "for thepresent," the property remaining under attachment.

3. The application to set aside the decree was rejected onthe 28th December 1889, and this order was confirmed in appeal on the 16th May1890.

4. On the 21st January 1892, the decree-holder made anapplication to execute the decree by attachment and sale of certain properties,and in that application he prayed that "the attachment in execution 219 of1889 might remain in force, and action be taken in the present execution as acontinuation or revival of the said execution."

5. The judgment-debtor contended that the application of the21st January 1892 was barred under Schedule III, Article 6, of the BengalTenancy Act, three years having elapsed since the date of the decree. TheSubordinate Judge disallowed the objection relying on the case of Lutful Hug v.Sumbhudin Pattuck I.L.R. Cal. 248, and holding that the order of 16th May 1890dismissing the appeal against the order rejecting the application to set asidethe ex parte decree was the final decree within the meaning of the articlereferred to. And he also held that as regards the properties named in the firstapplication, the present application might fairly be considered to be acontinuance of the proceedings taken upon that application.

6. It is contended before us that the Subordinate Judge waswrong in treating the order of the 16th May 1890 as the final decree in thesuit, and in allowing a fresh period of limitation from the date of that order;and it is further argued that the application of the 21st January 1892 must betaken to be an application to execute the decree within the meaning of thearticle in question, and that it is therefore barred.

7. We agree with the learned pleader who appeared for theappellant in this case that the decree in question must be taken to be a decreeunder the Bengal Tenancy Act within the meaning of Schedule III, Article 6. Wethink that, having regard to Sections 143, 144 and 148 of that Act, there is aspecial procedure laid down for rent suits, and that therefore decrees in rentsuits are decrees under that Act, within the meaning of that article.

8. We are also of opinion that the "final decree"mentioned in that article must be the final decree in the suit and cannot beheld to include an order in appeal upon an application to set aside that decreeunder Section 108 of the Code. It follows, therefore, that execution of thedecree now in question would be barred, unless applied for within three yearsfrom the date of the decree of 30th May 1888. We have, however, been referredto a case of Chandra Prodhan v. Gopi Mohun Shaha I.L.R. Cal. 385, which appearsto be on all fours with the present case, in which it was held that when theexecution proceedings are stayed by order of the Court, a subsequentapplication to remove that order and proceed with the execution may be taken asa continuation of the former proceedings. That decision appears to be inharmony with a long series of decisions both in this Court and in the otherHigh Courts, and we see no reason to dissent from it. In the present caseexecution of the decree was stayed at the instance of the judgment-debtor; thecase was struck off the file merely "for the present" and for theconvenience of the Court; the property remained under attachment, and in hisapplication of 21st January 1892 the decree-holder expressly prayed that thatapplication might be taken to be a continuation of the former proceedings.Under these circumstances we think that the application in question must betaken to be not a distinct application to execute the decree, but anapplication in the former execution proceedings, so far at least as regards theproperty which was mentioned in the former application to execute the decree,and which was under attachment at the time when that execution case was struckoff, that is to say, on the 31st October 1889. As regards any other propertiesmentioned in the application of the 21st January 1892, we think that, as hasbeen decided in several cases both in this Court and in the other High Courts,the application is barred. The appeal will accordingly be allowed except asregards the property which was under attachment in execution case No. 219 of1889, and the Court executing the decree will, of course, see that noproceedings are taken against any other property except that mentioned in theapplication of 27th May 1889. We make no order as to costs in this Court.

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Baikanta Nath Mittravs. Aughore Nath Bose (18.12.1893- CALHC)