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Judgment
The decree-holder applied for execution, on the 15th February 1896, of his decree which was more than a year old.
It was necessary to issue notice u/s 248, CPC of 1882. We have now ascertained that no notice was issued and an order for attachment was
made on the 19th March 1896. The present application for the transmission of the decree for execution after substituting the appellant''s name as
transferee on record was made within 12 years from the date of the order. The question whether the application is barred depends upon the
meaning to be given It the word ''revived'' in Article 180, Schedule II of the Limitation Act. In all the cases cited an order to issue execution after
notice to the judgment-debtor has been held to revive a judgment or decree. But we have not been referred to any case in which an order alone
without any notice has been held to have that effect. The appellant''s pleader argues that the absence of notice u/s 248 of the CPC of 1882 has
been held to be only an irregularity and though it may be open to the judgment-debtor to set aside the order passed without notice in an
appropriate proceeding, it is not open to him to treat it as a nullity till set aside. See Malkarjun v. Narhari 27 I.A. 216. This may be so.
But the question that we have to consider is, what is the meaning of the term ''revived'' and when the cases show that it has long been
understood to mean an order after notice, we do not think we shall be warranted in giving that term a wider meaning. We must, therefore, uphold
the order of the learned Judge and hold there was no revivor.
It was then argued that as there is an application now pending to execute the decree, the question of limitation does not arise. This question was
not raised before the learned Judge, probably for the reason that the present application was to transmit the decree for execution and not to
continue any execution proceedings already pending. The appellant must be left to make a fresh application on that basis and cannot be allowed to
raise that question at this stage on this application.
The appeal is dismissed with costs.