KAMAKSHI PILLAI Vs. RAMASAMY PILLAI

JUDGEMENT

(1.) In Pachiappa Achari V/s. Poojali Seenan (1905) I.L.R. 28 M 557 it was held that an application for execution, though not in accordance with law, may be held to save limitation if it contains an application for the issue of a notice under Section 248 of the Code of Civil Procedure in a case in which a notice is necessary in order to enable execution to proceed. That case was followed by a Bench of this Court in C.M.S.A. No. 87 of 1905 and the same view was taken in Gopal Chunder Manna V/s. Gosina Das Kalay (1898) I.L.R. 25 C. 594.

(2.) Following these decisions, we think that inasmuch as a notice was in the present case a necessary preliminary to execution and the defective application for execution contained an application for notice, we must hold that the application of the 27 March 1902 saves the bar of limitation.

(3.) The order of the District Judge is reversed and that of the Court of first instance restored with costs here and in the lower appellate Court.