JUDGMENT : BANERJI, J.:— The only question in this appeal, which arises out of an application for the execution of a decree, is whether the application is time-barred. The decree is dated the 5th of January, 1895. The last previous application for execution was made on the 27th of July, 1901, asking for the arrest of the judgment-debtor. He was arrested on the 29th of that month, but he expressed his intention to apply to be declared an insolvent, and was accordingly released on furnishing security, On the 28th of August, 1901, he applied to be declared an insolvent. That application was dismissed on the 4th of October, 1901. In the meantime the execution proceedings, which had commenced with the application of the 27th of July, 1901, remained pending in the Court executing the decree. On the 16th of December, 1901, that is, after the dismissal of the application for declaration of insolvency, the decree-holder made an application for execution against the surety of the judgment-debtor. This application was dismissed on the 18th of December, 1901. “On that date the decree-holder was ordered to take further steps in execution of his decree, and he was given time to do so till the 21st of December. He took no further steps, and thereupon the execution case was struck-off the file on the ground that there was no prosecution of the application for execution on behalf of the decree-holder, and that neither he nor his pleader was present. This order was made either on the 21st or 23rd of December, 1901, it does not clearly appear which. The present application for execution was instituted on the 28th of September, 1904. This application was clearly made beyond three years of the date of the previous application, namely, the 27th July, 1901. The judgment-debtor contends that the application is time-barred. The Court of first instance held that the application of the 16th of December, 1901, asking for execution against the surety saved the operation of limitation. The lower appellate Court was of opinion that the resisting of the judgment-debtor's application for declaration of insolvency was a step in aid of execution. It is clear that the application against the surety presented on the 16th of December, 1901, cannot be regarded as an application in accordance with law within the meaning of article 179, paragraph 4, Schedule II of the Limitation Act. It is clear that the application against the surety presented on the 16th of December, 1901, cannot be regarded as an application in accordance with law within the meaning of article 179, paragraph 4, Schedule II of the Limitation Act. Having regard to the provisions of section 336 of the Code of Civil Procedure, no application could be made for execution against the surety, in as much as the judgment-debtor had applied to be declared an insolvent. This was held in the numerous cases cited under that section in O'Kinealy's edition of the Code of Civil Procedure, page 608 (6th Ed.). This Court held in Chattar v. Newal Singh, [1889] I.L.R., 12 All., 64 that the expression in accordance with law in article 179, Schedule II of the Limitation Act, means applying to the Court to do something in execution which by law that Court is I competent to do; and if the decree-holder asked the Court to do something which from his direct knowledge of fact or from his presumed knowledge of law he must have known that the Court was incompetent to do, that could not be treated as an application in accordance with law. This case was followed in Munawar Husain v. Jani Bijai Shankar, [1905] 25 A.W.N., 132, S.C. 1 A.L.J.R.. Therefore the application of the 16th of December, 1901, was not an application in accordance with law and could not save the operation of limitation. 2. As for the resisting of the application for declaration of insolvency, it appears that the decree-holder filed an answer to the application in which he said that the judgment-debtor was not a fit person to be declared insolvent and adduced certain evidence in support of his allegation. It does not appear that he filed any application to take any step in aid of execution. I am unable to hold that the mere filing of an answer to an application for declaration of insolvency can be deemed to be an application to take a step in aid of execution within the meaning of article 179. The learned Vakil for the respondent has been unable to refer me to any authority in support of the view of the Court below. The learned Vakil for the respondent has been unable to refer me to any authority in support of the view of the Court below. He contends, however, that the present application for execution must be deemed to be an application in continuance of the previous application of the 27th of July, 1901, and should not be deemed to be a fresh application for execution under article 179. This might have been a valid argument if the previous execution proceedings had been kept in abeyance or struck off owing to the filing of the application for declaration of insolvency. As I have already said, the proceedings in the execution case were stayed by the Court pending the disposal of the application for declaration of insolvency, but the Court did not remove the case from the list of pending applications for execution. After the dismissal of application for declaration of insolvency on the 4th October, 1901, the Court gave the decree-holder an opportunity to take further steps. In fact, by its order, dated 11th December, 1901, to which I have referred above, it directed the decree-holder in specific terms to take further steps till the 21st of that month. He failed to carry out the Court's order and the case was struck off, not because the application for decaration of insolvency had been filed but because after the dismissal of that application the decree-holder made default in prosecution and did not appear. Under such circumstances it cannot be said that the present application is an application to proceed with the previous application which was kept in abeyance on the interposition of a bar. The present application is certainly one within the purview of article 179, schedule II of the Act, and as it was not made within three years of any of the dates mentioned in the third column against that article, it was clearly time-barred. I accordingly allow the appeal, set aside the orders of the Courts below, and dismiss the application for execution with costs in all the Courts.