Das, J.This appeal arises out of a suit instituted by the appellants to enforce a mortgage bond executed by the defendant in their favour on 26th March 1905. The learned Judge in the Court below has dismissed the suit on the ground that it is barred by limitation.

The estate of the mortgagor was attached under the provision of the Encumbered Estates Act on 9th January 1907, and was released on 13th May 1922. The plaintiffs contend that they are entitled to exclude the period between 9th January 1907 and 13th May 1922; and that the suit, as instituted on 24th July 1922, must be held to be within time. Whether the plaintiffs are right in their contention must depend on the interpretation of the Encumbered Estates Act and especially upon the interpretation of Section 3 and Section 12 of that Act. Section 2 provides for the management of the property of the proprietor by an officer to be appointed by the Commissioner under certain circumstances; and Section 3 enacts as follows:

On the publication of an order u/s 2 the following consequences shall ensue: first all proceedings which may then be pending in any civil Court in British India or in any revenue Court in Bengal, in respect of such debts or liabilities, shall be barred; and all processes, executions and attachments for or in respect of such debts and liabilities shall become null and void.

2. It is not necessary to quote the rest of the section. The learned District Judge has takes the view that the vesting order passed u/s 2 did not operate as an injunction restraining the plaintiffs from instituting a suit as against the defendant. Now it does seem to me that Section 3 applies to pending suits, namely, to suits which were pending at the date of the vesting order. It has, however, been held in Kameshar Prasad v. Bhikhan Narain Singh [1893] 20 Cal. 609 that the effect of the second portion of Section 3 is to bar all suits instituted after the vesting order is made and whilst it is in force. In arriving at this conclusion the learned Judges argued on the footing that any other view would force them to the conclusion that the latter half of the clause is mere surplusage. The latter half referred to consists of the following sentence:

and all processes, executions and attachments for or in respect of such debts and liabilities shall become null and void.

The learned Judges say:

If the processes, execution and attachment referred to in the second half be processes etc., in pending proceedings, and this no doubt would be the appropriate meaning of the second and third of such words they would necessarily be null and void, if had in proceedings themselves expressly barred.

3. The learned Judges concede that the addition of the second and third of such words--executions and attachments, is embarrassing, because they are a surplusage, but they think that the first of such words "process"--includes summons, and that:

When the legislature declares that in respect of particular matters, all processes shall be null and void, it absolutely bars all suits respecting them.

Now it may be conceded that the word "process" includes "summons" but it is one thing to provide that all processes including summons shall be null and void; it is another and a different thing to bar the institution of suits. It is true that in Englnd an action is commenced with a writ of summons endorsed:

with a statement of the nature of claim made or relief or remedy required; but in India, every suit shall be instituted by the presentation of a plaint or in such other manner as may be required: Section 26, Civil P.C.

and it is only "where a suit has been duly instituted" that:

a summons may be issued to the defendant to appear and answer the claim.

4. It follows therefore that, in India a provision that a summons shall be null and void does not operate as an injunction restraining the institution of the suit. I admit that Section 3 of the Act is not easy to construe; but I am clear on one point, namely, that there is no provision in the Act providing that a vesting order u/s 2 has the effect of barring the institution of suits. No doubt, summons cannot be served on the defendant if such a suit be instituted until the bar is removed u/s 12 of the Act; but a suit may be instituted, and the institution of the suit has the effect of keeping the claim alive as against the defendant. I am therefore unable to agree with the construction placed upon Section 3 in the case to which I have referred.

5. It was contended before us that the decision of the Calcutta High Court was pronounced so far back as 1893; and that the legislature has accepted the interpretation placed upon that section by declining to amend that section, though the Act itself was amended at least twice. Now I know of the principle that:

when you find legislation following a continuous practice and repeating the very words on which that practice was founded, it may perhaps fairly be inferred that the legislature in re-enacting the statute intended those words to be understood in their received meaning. See Commissioners v. Pensel [1891] A.C. 531.

6. That principle can have no possible application to this case; since it is not shown that there was a legislation following a practice, continuous or otherwise or at all, and that the legislature repeated the very words on which the practice was founded. It is quite true that certain sections of the Encumbered Estates Act were amended from time to time; but it is ridiculous to talk of such amendments as a legislation of the entire subject-matter. I am of opinion, therefore, that we are free to put our own interpretation on Section 3; and my conclusion is that, there having been nothing to prevent the plaintiff from instituting the suit, the plaintiffs suit must be dismissed as barred by limitation.

7. But assuming that the vesting order in this case operated as an injunction restraining the plaintiff from instituting the suit, the plaintiff must now satisfy the Court that the injunction has been withdrawn. The plaintiffs rely upon Section 12, Encumbered Estates Act, and upon Section 15, Lim, Act. Now Section 12 runs as follows:

When all the debts and liabilities mentioned in the schedule referred to in Section 11, and the amount of any loan effected under the power conferred by Clause (c), Section 18, together with the interest (if any) due thereon, have been paid and discharged; or if the Commissioner, at any time before a scheme has been approved by him u/s 11, thinks that the provisions of this Act should not continue to apply to the case of the holder of the said property or his heir; or if at any time an arrangement is made for the satisfaction of the debts and liabilities which is accepted by the creditors and approved by the Commissioner, such holder or his heir shall be restored to the possession and enjoyment of the property or of such part thereof as has not been sold by the manager under the power contained in Section 18, but subject to the leases and mortgages (if any) granted and made by the manager under the powers hereinafter contained.

Provided that, where a fresh order has been made u/s 2, in pursuance of Section 12A, sub-8. (5) re-appointing a manager and vesting in him the management of the whole or any portion of the property of any holder, such property shall not be restored to such holder, but shall be retained by the manager for restoration to the heir of such holder in due course.

Where the holder of the property or his heir is so restored under the circumstances mentioned in the second clause of this section such restoration shall be notified in the Calcutta Gazette and thereupon the proceedings processes, executions and attachments mentioned in 8. 3 (so far as they relate to debts and liabilities which the manager has not paid off or compromised), and the debts and liabilities barred by Section 7, shall be revived; and any mortgagee or conditional vendee dispossessed u/s 16 shall be reinstated unless his claim under the mortgage or conditional sale has been satisfied and in calculating the periods of limitation applicable to such revived proceedings, and to suits to recover and enforce such revived debts and liabilities the time intervening between such restoration and the publication of the order mentioned in Section 2 or the making of the order (if any) mentioned in Section 28 shall be excluded.

8. It will appear then, to quote the words of the learned District Judge, that

S. 12 provides for restoration of the owner to management of his property under three contingencies. The first is when all the debts and liabilities have been discharged; the second is when the Commissioner before approving of a scheme considers that the provisions of the Act should not continue to the estate; the third is when a composition has been made and approved by the Commissioner.

Now it is conceded in this case that none of the contingencies mentioned in Section 12 has happened. It is conceded that the debts and liabilities of the owner have not been discharged; that a composition has not been made and approved by the Commissioner and that the estate was restored to the owner after (and not before) a scheme has been approved by him u/s 11. Now it is quite clear that para. 6, Section 12, the clause upon which the plaintiffs rely operates only, to quote the words of the statute, where the holder of the property or his heir is so restored under the circumstances mentioned in the second clause of this section, namely, when the Commissioner at any time before a scheme has been approved by him u/s 11, thinks that the provisions of this Act should not continue to apply to the case of the holder of the said property or his heir. This being so, it is difficult to understand how the proceedings, processes, executions and attachments mentioned in Section 3 "shall be revived." There is no doubt that the Encumbered Estates Act is not an artistically drafted Act; but there is no reason why we should supply words which are not to be found in the Act, because it appears that the legislature has made no provision for a case of this nature. I may state that this has been recognized by the legislature and Section 12 has been amended recently.

9. But as the Act stood, it is impossible to hold that there is a revival of proceedings which were stayed under the provision of Section 3, where the holder of the property or his heir has been restored, but not under the circumstances mentioned in the second clause of the section. Reliance was placed upon the judgment of this Court in Mathura Prasad Singh and Others Vs. Jageswar Prasad Singh, . The learned Judges conceded that

the strict wording of the Act seems to show that no revivor was contemplated in circumstances other than those mentioned in Clause 2, Section 12;

but they expressed the view that, regard being had to the fact that the statute was in artistically drafted, a too strict interpretation ought not to be placed on Section 12. But as I read the judgment of the learned Judges, they do not decide that the Clause 6, Section 12 did operate in the case before them; for they say

that even were it to be held that as the Act is drafted no revivor of proceedings is allowed, the provision of Section 15, Lim. Act, must apply.

10. I shall deal with this point in a moment: but I must point out that the actual decision of the learned Judges is not based on Section 15, Lim. Act, but on the fact that there were acknowledgments of the debt by the defendants which took the case out of limitation. They say

the debt would be barred, even if the period of management were excluded, if the defendants had not in 1904 acknowledged their indebtedness;

and they come to the conclusion that "these acknowledgments save the claim from the bar of limitation." The expression of the opinion that, if Section 12 did not apply, the provision of Section 15, Limitation Act would, in the circumstances of the case, apply was not necessary for the purpose of the decision; for there is no doubt that the learned Judges thought that it was only the acknowledgments of the debt by the defendants that saved the claim from the bar of limitation.

11. I next proceed to consider whether Section 15, Lim. Act, does not apply to this. case. Section 15 runs as follows:

In computing the period of limitation prescribed for any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, the day on which it was withdrawn, shall be excluded.

12. Now it may be assumed that the institution of the suit was stayed by an injunction or order, but there is no order in this case withdrawing the injunction. If I am right in the construction which I have placed on Section 12, Encumbered Estates Act, it must follow that the injunction is still in force. It is quite true that it is in force, because the legislature did not provide for the contingency which has happened in this case, and because the Commissioner restored the property to the owner without considering that para. 2, Section 12 did not empower him to take the course which he did take; but the question is one of interpretation of the statute; and it seems to me that there being no order withdrawing the injunction, the case does not fall to be considered u/s 15, Lim. Act. In this view, the suit is premature, and the plaintiff is not entitled to any decree in this suit.

13. I agree with the conclusion at which the learned District Judge has arrived and I must dismiss this appeal with costs.

Allanson, J.

14. I agree.