(1.) The question in this appeal is whether the present Darkhast filed by the decree-holder on the 1st October 1917 is in time. The decree under execution was passed on the 19th September 1912. The first Darkhast was presented on the 4th of March 1913. It appears that during the pendency of a certain suit, the execution was stayed from 28th July 1913 to 27th July 1914. It also appears that the Darkhast of 1913 was adjourned from time to time from 12th October 1914 to 21st September 1915 during the pendency of certain miscellaneous proceedings relating to the investigation of claims to the attached property put forward by third parties. Both the lower Courts have held that the present Darkhast is in time, because the decree-holder is entitled under Section 15 of the Indian Limitation Act to exclude the time from 28th July 1913 to 27th July 1914 and from 12th October 1914 to 21st September 1015. It is clear from the dates, and it is not disputed, that if these periods were excluded, the present Darkhast would be in time. The lower appellate Court also relied upon an application made by the decree-holder on the 5th of August 1915 for time to enable him to obtain information regarding the defendant s share in certain property which was attached. This application has been held by the lower appellate Court to be a step-in-aid of execution. If it is a step-in-aid of execution it is clear that apart from the first ground the present Darkhast would be in time.
(2.) Two points have been urged before me on behalf of the appellant, judgment- debtor : first, that the period from 12th October 1914 to the 21st September 1915 cannot be excluded under Section 15 of the Indian Limitation Act, because there is no order staying the execution of the decree, and, secondly, that the application of the 5th August is not a step-in-aid of execution, and that it is really an application in retardation of the execution.
(3.) As regards the first point I am by no means satisfied that the decree-holder is entitled to the deduction of the time from 21st October 1914 to 21st September 1915 under Section 15 of the Indian Limitation Act. The section provides that in computing the period of limitation prescribed for any application for the execution of the decree the time of the continuance of the order staying the execution of the decree shall be excluded. Admittedly there is no written order staying the execution of the decree during this period from 12th October 1914 to the 21st of September 1915. All that I find from the Rozanama is that the matter was adjourned from time to time during this interval. It is not without significance that it is during that interval that the application, which is relied upon as a step-in-aid of execution by the decree-holder, was made. I do not say that under Section 15 of the Indian Limitation Act a written order staying the execution of the decree is necessary; but I think that there must be a clear order staying the execution of the decree. I do not think that the orders of adjournment from time to time could be properly construed as orders directing stay of the execution of the decree. I am, therefore, not prepared to accept the view taken by the lower Courts that this period can be excluded under Section 15.