1. The question is whether the application of the 18th February 1868 was within time. The last preceding application was made on the 21st December 1864, and in pursuance thereof notice was issued to the judgment-debtor. On the 7th February 1865, the Court required the decree-holder to produce proof of the service of the notice within four days, and on the 23rd idem, in consequence of his having failed to comply with the requisition, struck off the1 application.
2. The first Court has held the application of the 18th February 1868, to have been beyond time, being of opinion that the period of three years allowed by law should be reckoned from the 7th February 1865, the date on which the decree-holder ceased to proceed in the matter of the application of the 21st December 1864. The lower Appellate Court has held that the period of limitation should be reckoned from the 2,3rd February 1865, the date on which the application of 21st December 1864 was struck off, and consequently that the application of 18th February 1868 was within time. The first plea in appeal impugns the lower Appellate Court’s ruling on the point in question, and is accepted by us as valid.
3. There was no proceeding either of the decree-holder or of the Court between the 7th and 23rd February 1865. On the part of the decree-holder, instead of action, there was inaction; and the Court’s proceeding of the latter date striking off the application for default of prosecution was certainly not a proceeding to keep the decree alive. The view we take appears to us to be strongly supported by some of the observations in the Privy Council’s judgment, dated 14th July 1870, in the case of Dhiraj Mahtab Chund Bahadur v. Bulram Singh Baboo 5 B.L.R. at p. 616, as well as by the judgment Roy Dhunput Singh Roy v. Mudhomottee Debia 11 B.L.R. 23, to which the lower Appellate Court refers in support of its own view.
4. We accordingly decree the appeal with costs, reversing the lower Appellate Court’s order and restoring that of the Court of First Instance.