JUDGMENT Das, J. - The suit in which the present application has been made was a suit against a firm in the firm name. The writ of summons was served on Bangsidhar, one of the partners of the Defendant firm. On May 15th, 1931, an ex parte decree was passed in this suit directing the Defendant firm to pay to the Plaintiff firm the sum of Rs. 45,091-2 with interest thereon at 6 per cent. per annum from the date of the decree until realisation and costs of the suit. On May 5th, 1943, a tabular statement affirmed on April 26th, 1943, by one Balmukund Jalan, said to be the proprietor of the Plaintiff firm, was presented before the Master of this Court. From the Tabular Statement it appears that no appeal has been preferred against the decree, nor has there been any adjustment of the decree or any previous application for the execution of the decree. The costs of the suit have not yet been taxed. In column 9 it is stated that execution of the decree is sought against 6 persons, namely: (1) Bangsidhar, (2) Chimonlal, (3) Radhakissen, (4) Kishorilal, (5) Madanlal and (6) Shamsunder. All these 6 persons are stated to have been partners of the Defendant firm. The Defendant firm is stated to have been dissolved since the date of the decree. The mode in which the assistance of the Court is required is mentioned in column 10 of the Tabular Statement as follows: The Plaintiff firm prays that the said sum of Rs. 45,091-2 with interest thereon at the rate of 6 per cent. per annum from the said 15th May, 1931, till realisation and the costs of taking out this execution be realised and paid to the Plaintiff firm by attachment and sale of the following ordinary shares, viz.: 2 Ordy. shares belonging to Bangsidhar Chowdhury. 2 " " " " Chimanlal Chowdhury. 2 " " " " Radhakissen Chowdhury. 94 " " " " Kishorilal Chowdhury. shares belonging to Bangsidhar Chowdhury. 2 " " " " Chimanlal Chowdhury. 2 " " " " Radhakissen Chowdhury. 94 " " " " Kishorilal Chowdhury. in the Shree Krishna, Limited, a limited company having its registered office at No. 192, Cross Street, Calcutta, standing in the name of the said Bangshidhar Choudhury, Chimonlal Choudhury, Radhakissen Choudhury and Kishorilal Choudhury respectively and also by attachment and sale of the respective shares of the said Bangshidhar Choudhury, Chimonlal Choudhury, Radhakissen Choudhury and Kishorilal Choudhuri in the profits, stock-in-trade and assets belonging to the partnership firm of the Shankar Industries also carried on at No. 192, Cross Street by the said Bangshidhar Choudhury, Chimonlal Choudhury, Radhakissen Choudhury and Kishorilal Choudhury in partnership with certain other persons. 2. On the presentation of the Tabular Statement before the Master on May 5th, 1943, the Master on the same day made an endorsement on the Tabular Statement as follows: Let notice issue under Or. 21, rr. 50 and 22 (1) (a) of the Code of Civil Procedure. 3. Pursuant to the direction of the Master a notice bearing the date May 5th, 1943, over the signature of the Master and under the seal of the Court was issued from the Court offices. The heading of the notice was " Notice under Or. 21, rr. 50 and 22 (1) (a), C. P. C." The notice was addressed to the 6 persons I have mentioned and was in the following terms: Whereas the Plaintiff firm above-named have applied to this Court for leave to execute the decree made in this suit and dated the fifteenth day of May, 1931, against you as such partners as aforesaid you are hereby required to appear in person before the Judge in Chambers on the twenty seventh day of May, 1943, at half past ten o'clock in the forenoon to show cause why the said prayer of the Plaintiff firm should not be granted. 4. It will be noticed that the returnable date of the notice was fixed on a date which was beyond the period of 12 years from the date of the decree. 5. The matter was thereafter "mentioned and adjourned" from time to time as will appear from the endorsements on the back of the notice signed by the attorneys on both sides and the Assistant Registrar of this Court. 5. The matter was thereafter "mentioned and adjourned" from time to time as will appear from the endorsements on the back of the notice signed by the attorneys on both sides and the Assistant Registrar of this Court. Eventually the matter was listed and came up before me for disposal on Friday last. 6. Kishorilal and Chimonlal have filed two separate affidavits on more or less same lines. Their contentions are as follows: (i) that there is no application under Or. 21, r. 50, C. P. ft, and the notice issued by the Master is misconceived. The application on Tabular Statement and the reliefs sought therein are not in accordance with law and therefore this application is liable to be dismissed. (ii) that Jagannath Jugalkishore is the name of a joint Hindu family business. The members of the said joint family have varied from time to time. The Plaintiffs have refused to furnish the names of the Plaintiff firm. The decree is a nullity and is not executable and the application for execution has not been made by any person legally entitled to make the same. (iii) that the firm of Kaniram Bangshidhar was started in May/June, 1920, when Radhakissen, Madanlal and Kishorilal were minors and Shamsundar was not even born. The partners of Kaniram Bangshidhar were (1) Bangshidhar, (2) Chimonlal and (3) Sagarmull. Radhakissen, Madairal, Kishorilal and Shams under were not partners at any time in that firm. (iv) that the agreement on which this suit had been founded had been entered into by Chimonlal without any authority of the other partners of the Defendant firm and the other partners are not bound by the agreement or by the decree founded thereon. (v) that Kishorilal owns 94 shares in Shree Krishna, Ltd., but Bangshidhar, Chimonlal and Radhakissen do not now own any share in the company and no order for attachment or sale of any share in the company can be made in execution of this decree. (vi) that Shanker Industries is a partnership firm started in 1937 by Chimonlal, Kishorilal and Badridas Ratanlal who are strangers to this suit. The shares of Chimonlal and Kishorilal cannot be attached and sold in execution. 7. Radhakissen and Madanlal have filed a joint affidavit adopting the above contentions. Shamsunder has not filed any affidavit presumably because he is out of town as alleged in this joint affidavit. The shares of Chimonlal and Kishorilal cannot be attached and sold in execution. 7. Radhakissen and Madanlal have filed a joint affidavit adopting the above contentions. Shamsunder has not filed any affidavit presumably because he is out of town as alleged in this joint affidavit. Bangsidhar who was served with the writ of summons has not filed any affidavit. He is also aid to be out of town. 8. Balmukund Jalan has filed an affidavit in reply controverting each of the 6 contentions raised in the affidavits in opposition. 9. Mr. S. N. Banerjee appearing for all the 6 persons did not argue points (ii), (iv) and (v). He conceded that Bangsidhar had been served with the writs of summons in the suit as partner and came within Or. 21, r. 50 (1) and therefore, notice under Or. 21, r. 22 (2) (a) having been served on him, execution may be issued against him. Turning to the Tabular Statement I find that the mode in which the assistance of the Court is required is by attachment and sale of the respective shares of these persons in the Shree Krishna, Ltd. and also by the attachment and sale of their shares in the profits, stock-in-trade and assets belonging to the firm of Sanker Industries which is carried on by them in partnership with certain other persons. The decree sought to be executed is not against the firm of Sanker Industries or the partners of that firm as such. Under Or. 21, r. 49 execution in such circumstances can only be by an order charging their interest in that firm and by appointing a receiver of their share and not by attachment and sale. Or. 21, r. 49 requires notice to be given to the other partners. No such notice has been given. Consequently the objection formulated in point (vi) above appears to me to be well founded and this application, in so far as it seeks to execute the decree in this suit by the attachment and sale of the shares of these persons in the firm of Shanker Industries, must be rejected. Therefore execution can go against Bangsidhar only in regard to his shares, if any, in Shree Krishna, Ltd. 10. Therefore execution can go against Bangsidhar only in regard to his shares, if any, in Shree Krishna, Ltd. 10. Having disposed of the application so far as Bangsidhar is concerned, I am now left with points (i) and (iii) which concerns the other 5 persons, Chimonlal, Radhakissen, Kishorilal Madanlal and Shamsundar who were not served with the writ and who deny that the last 4 persons were or are partners of the firm of Kaniram Bangsidhar. These persons do not come under clauses (b) and (c) of Or. 21, r. 50 (1) of the Code of Civil Procedure. They are, therefore, to be dealt with under Or. 21, r. 50 (2). Four of these persons having disputed their liability the question of their liability has to be tried and determined in the manner in which any issue in a suit may be tried and determined and ordinarily I would have to order this question to be set down for trial on evidence. Mr. S. N. Banerjee, however, has taken several preliminary points, a decision on which in his favour will obviate the necessity of any trial of that question of liability and save costs. The points are as follows: (a) that this is an application on a Tabular Statement as prescribed by Or. 21, r. 11 and there is no application for leave, such as is contemplated by Or. 21, r. 50 (2) and therefore this application is incompetent and not maintainable. (b) that assuming that the two applications can be combined and/or an application for leave can be regarded as implied in an application for execution yet, in substance, they are two applications, firstly an application for leave under Or. 21, r. 50 (2) which must be made to the Court which passed the decree and secondly, in the event of such leave being granted, an application for execution under Or. 21, r. 11 which must be made to the Court executing the decree which may be the same Court as passed the decree or another Court to which the decree is transmitted for execution, in so far as it is an application for leave under Or. 21, r. 50 (2) it is barred under Article 181 of the Limitation Act and this application being barred, the second application namely the one for execution under Or. 21, r. 11 is not maintainable. 21, r. 50 (2) it is barred under Article 181 of the Limitation Act and this application being barred, the second application namely the one for execution under Or. 21, r. 11 is not maintainable. (c) that assuming that the two applications are to be regarded as one application for execution, the application was made to the Court on the date when the notice was made returnable, i.e., on May 27th, 1943, which was more than 12 years after the date of the decree. 11. It will be convenient to deal with points (a) and (b) together. So far as I am aware there is no decision of this Court directly in point and none has been brought to my notice. I therefore propose first to examine the relevant provisions of the CPC and our practice and the Rules of this Court bearing on the question under consideration and then to discuss and consider the decisions of other Courts. 12. The question turns mainly on the true meaning and effect of Or. 21, r. 50 (2). That rule is in the following terms: Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-r. (1), cls. (6) and (c) as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined. 13. It is common knowledge that the provisions of Or. 48A of the Rules of the Supreme Court were adopted by our CPC of 1908 which is now in force. Rules 1 to 7, 10 and 11of Or. 48A, R. S. C. have been embodied in our Or. 30. Rule 8 of Or. 48A, however, has not been included in our Or. 30 but it has been inserted in Or. 21 as r. 50. Our Or. 21 deals with and is headed "Execution of Decrees and Orders." The marginal note to Or. 21, r. 50 is "Execution of decree against firm." From these circumstances it is argued on behalf of the decree-holders that all proceedings under Or. 30 but it has been inserted in Or. 21 as r. 50. Our Or. 21 deals with and is headed "Execution of Decrees and Orders." The marginal note to Or. 21, r. 50 is "Execution of decree against firm." From these circumstances it is argued on behalf of the decree-holders that all proceedings under Or. 21, r. 50 are proceedings in execution and therefore the application prescribed in Or. 21, r. 50 (2) is an application in execution. It is contended that there is nothing in the Code which says that there have to be two separate applications, one for leave to execute and another for execution. The argument is that the application is really one application for execution and the obtaining of leave is merely ancillary to that application. The application being one for execution and the decree in this case being a decree of the High Court, the application is governed by Article 183 of the Limitation Act and the present application, which was made before the Master on May 5th, 1943, is within time. 14. Reading Or. 21, r. 50 it seems plain to me that with regard to partnership property or persons falling within cls. (b) and (c) of sub-r. (1) the decree-holder is entitled to apply for execution of the decree immediately in the ordinary way. Nothing further has to be done by him before he makes the application for execution and no leave of Court is necessary to enable him to apply for execution. In the case, however, of persons other than those referred to in cls. (b) and (c), the decree-holder cannot proceed to execution at once or at his own pleasure but has to obtain the leave of the Court. In substance the application for leave under Or. 21, r. 50 (2) is an application for determination of the liability of the persons sought to be made liable as partners which liability has not been determined before. Therefore this determination of liability and the obtaining of the leave of the Court in such a case is an essential requirement which must be fulfilled before the decree-holder becomes entitled to apply for execution. In other words-without leave the decree is not executable against those persons. If the Court grants the leave then and only then the decree becomes executable against those persons and the decree-holder acquires the right to apply for execution. In other words-without leave the decree is not executable against those persons. If the Court grants the leave then and only then the decree becomes executable against those persons and the decree-holder acquires the right to apply for execution. If obtaining leave on application to the Court which passed the decree is necessary for the acquisition of the right of the decree-holder to apply for execution, then it follows that the application for leave must be anterior in point of time to the application for actual execution. Logically, the application for leave must precede the application for execution, because the application for execution depends, for its maintainability, on leave having been granted by the Court on the application for leave. 15. The logical sequence which I deduce from the language of Or. 21, r. 50 (2) is brought out more clearly if we compare the language of Or. 21, r. 50 (2) with that of Or. 21, rr. 15, 16, 17, 18, 19 and 22. The language used in the last-mentioned several rules clearly indicates the sequence of proceedings thereunder. Under those rules the decree-holder applies for execution and then certain things are done by the Court. The application for execution, under those rules, comes first in point of time. If the legislature intended that the same sequence should be followed in the case of execution of a decree against a firm then the language of Or. 21, r. 50 (2) would have been similar to those employed in the earlier rules to which I have referred. In that case the sub-r. (2) would have said that where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in sub-r. (1), cls. (6) and (c) as being a partner in the firm, he may apply for execution and where the liability is not disputed the Court shall grant execution and where the liability is disputed the Court shall try and determine the question of liability and if the person is held liable the Court shall grant execution. Such language would have shown that the application for execution must come first and the determination of liability must follow on such application. But Or. 21, r. 50 (2) has adopted a different language which implies that application for leave comes before the application for actual execution. 16. Such language would have shown that the application for execution must come first and the determination of liability must follow on such application. But Or. 21, r. 50 (2) has adopted a different language which implies that application for leave comes before the application for actual execution. 16. There is a significant difference in the language of sub-r. (1) and that of sub-r. (2) of Or. 21, r. 50. Sub-r. (1) speaks of execution being granted whereas sub-r. (2) speaks of leave being granted. Sub-r. (2) is concerned only with an application for leave. Where the liability is not disputed the Court grants the leave. Where the liability is disputed the Court orders that the liability of the person be tried and determined. If the issue is determined in favour of the decree-holder the Court, I apprehend, gives leave and if it is determined in favour of the person sought to be made liable the Court refuses the leave. It seems to me that the scope and ambit of sub-r. (2) is limited to the determination of liability of such person and granting or refusing leave. It does not, in terms, say what will happen when leave is given by the Court. This shows that the application for actual execution and the order for execution are not within the purview of sub-r. (2). The application for execution and the order for execution must be made under some other provision of the Code. 17. Again, if the application under sub-r. (2) were an application for execution then it would be governed by sec. 47 of the Code and in that case an order made on such an application will be a "decree" as defined in sec. 2 (2) of the Code and would be appealable as such. In that case there would have been no necessity for enacting sub-r. (3) of Or. 21, r. 50. This also indicates, to my miner, that the application for leave under Or. 21, r. 50 (2) is not an application for execution. 18. I have been pressed with the argument that according to our present practice applications for execution of a decree against persons falling under cls. (6) and (c) of Or. 21, r. 50 (1) are invariably made on a tabular statement before the Master and the Master directs notice to issue under Or. 18. I have been pressed with the argument that according to our present practice applications for execution of a decree against persons falling under cls. (6) and (c) of Or. 21, r. 50 (1) are invariably made on a tabular statement before the Master and the Master directs notice to issue under Or. 21, r. 50 and the notice is made returnable before the Judge and the order for execution is made on the same Tabular Statement and that it is not our practice to make two applications, namely one for leave under Or. 21, r. 50 (2) and another for execution on a Tabular Statement under Or. 21, r. 11. If my analysis of Or. 21, r. 50 (2) is correct then I am bound to say that logically there should be two applications, one for leave and the other for execution and that strictly speaking the practice now followed is a wrong practice, for it proceeds on the assumption that the two applications are in reality one application for execution which in my opinion they are not. Further, there is no provision in our Rules authorising the Master to issue any notice under Or. 21, r. 50 at all. Call the application for leave under Or. 21, r. 50 (2) as an ancillary application in execution or a preliminary application in execution or an application implied in an application for execution or by any other name you like, yet in substance and reality it is a positive and definite application under a positive and definite provision of the Code. It is not the same as an application for execution and I do not conceive any reason why we should not recognise this logical conclusion. 19. If, as I think, the two applications are different then the question of limitation arises. Application to enforce a decree of this Court is governed by Article 183 of the Limitation Act and an application for execution of a decree of a Mofussil Court is governed by Article 182 of that Act. The application for leave is a special application prescribed under Or. 21, r. 50 (2). It is not an application for execution and therefore not governed by Article 182 or 183. Therefore it must be governed by Article 181 which provides a period of 3 years. The application for leave is a special application prescribed under Or. 21, r. 50 (2). It is not an application for execution and therefore not governed by Article 182 or 183. Therefore it must be governed by Article 181 which provides a period of 3 years. Our loose practice of combining the two applications has caused us to overlook this important question of limitation and this fact alone is a good and cogent reason for revising our practice which is calculated to mislead the profession and the litigants as it has done in this case. I see no hardship in so holding, for people who deal with a firm must make it their business to ascertain with whom they are dealing and in any event 3 years' time after decree under Article 181 ought to be enough for finding out the partners. 20. It is argued that the application for leave is an application under Or. 21, r. 50 (2) which is in the Order dealing with execution of decrees and orders and therefore it is an application in execution proceedings. What follows if it is? All applications in execution proceedings are not applications for execution and are not governed by Articles 182 and 183. There are various applications under various rules of Or. 21 for which different periods of limitation are provided. Take Articles 165, 166, 167, 174, 175, 180. The applications which are specifically governed by these Articles are all applications in execution proceedings but certainly are not applications for execution. When the decree-holder complains of resistance or obstruction to delivery of possession of immovable property decreed to him he does seek to enforce his decree but that application is not governed by Article 182 or 183. In my opinion the application for leave although it may be an application in execution proceedings is not an application for execution and consequently does not come under Article 182 or 183 of the Limitation Act. There being no other specific Article applicable to it, it must be governed by Article 181 of that Act. 21. I now come to discuss and consider the decisions of other Courts bearing on the question now before me. 22. There being no other specific Article applicable to it, it must be governed by Article 181 of that Act. 21. I now come to discuss and consider the decisions of other Courts bearing on the question now before me. 22. The point appears to have been first taken in the case of AIR 1929 Lahore 228 where Bhide, J., at p. 230 without assigning any reason disposed of the point with the following observations: The Learned Counsel for the Respondent urged in the end that the decree-holders had made no separate applications for leave to execute the decree against the Respondent as contemplated by Or. 21, r. 50 (2), Civil Procedure Code. But the present application, in my opinion, necessarily implied such a prayer. It does not appear that a separate application for leave was necessary. 23. It will be noticed that the learned Judge did not say that the determination of liability under Or. 21, r. 50 (2) could be dispensed with or was not necessary. In fact he held that that determination could, by reason of sec. 42, Civil Procedure Code, be made by the executing Court. If that were so an application has to be made on which the issue can be raised and the Court can proceed to a decision. The learned Judge by saying that the application for execution necessarily implied such a prayer must necessarily be regarded as assuming the existence of such an application for leave. As soon as the learned Judge concedes that the application for leave is implied in an application for execution he in effect concedes the existence of two applications. Then his statement about two separate applications being unnecessary must be understood to mean that the two applications need not be on two separate documents but may be included in one document. 24. The case of Vishinji Goverdhondas v. Vasumal Wadhumal A. I. R. [1930] Sind. 180 is interesting and the reasoning adopted there by Rupchand, A. J. C., so nearly accords with my own on the point under consideration that I propose to set out the same in extenso. At p. 181 the Additional Judicial Commissioner stated as follows: The most important point argued on behalf of the opponent and to which effect must be given is that of limitation. It is argued that an application under Or. At p. 181 the Additional Judicial Commissioner stated as follows: The most important point argued on behalf of the opponent and to which effect must be given is that of limitation. It is argued that an application under Or. 21, r. 50 (2), C. P. C., falls within the purview of Art. 181 and not Art. 182, Sch. 1, Limitation Act. My attention has not been drawn to any decided case on the point and so far as I am able to ascertain, it appears to be res Integra. 25. Now, a decree passed against a firm under the provisions of Or. 30, C. P. C., is a decree against certain unknown persons who carried on business in that name at the date of the accrual of the cause of action and against such known persons as have been served with the summons or have voluntarily appeared in the suit as Defendants. In the form in which the decree is passed it is incapable of execution against such unknown person or persons unless and until their identity is established in accordance with the provisions of Or. 21, r. 50 (2). C. P. C., by applying to the Court for leave to execute the decree against them. Furthermore, the application for leave is required to be made to the Court which passed the decree and not to the Court which executes the decree and any order passed thereon is appealable as if it was a decree passed in a suit. 26. Under the circumstances an application under r. 50 (2), C. P. C., which prima facie is anterior to an application for execution of the decree, or which at any rate must be granted by the Court before execution is ordered to issue, cannot possibly be said to be an application for execution of the decree within the meaning of Art. 182, Sch. 1, Limitation Act. If that be so, such an application would fall within the purview of Art. 181, Sch. 1, which is the residuary article, applicable to all applications made under the CPC and which are not otherwise provided for in Sch. 1. 27. 1, Limitation Act. If that be so, such an application would fall within the purview of Art. 181, Sch. 1, which is the residuary article, applicable to all applications made under the CPC and which are not otherwise provided for in Sch. 1. 27. Although there is no direct authority on the point reference might usefully be made to the observations of their Lordships of the Privy Council in Maharaja of Darbhanga, v. Homeswar Singh L. R. 48 I. A. 17: S. C. 25 C. W. N. 337 (1920). In that case, the decree which was passed in 1906 provided that the decretal sum be realised by the sale of the property belonging to one J. in possession of the Defendant, Ekradeshvar and that the Plaintiff would have no right to any portion of the property of J. which might be in the possession of any person other than the Defendant, The property of J. did not come into the possession of the Defendant until 1914, and an application was then made for execution of the decree. Their Lordships allowed the execution to issue, holding that under the circumstances of the case Art. 181 applied and observed: They are of opinion that when the Indian Limitation Act of 1908 prescribes three years from the date of a decree or order as the period within which it must be enforced, the language, read with its context, refers only, as they have already indicated, to an order or decree made in such a form as to render it capable in the circumstances of being enforced. This interpretation appears to them not only a reasonable one in itself, but to be in accordance with the previously expressed opinion of this Board in Kamiruddin Ahmed v. Jawahir Lal L.R.82 I. A. 102 (1905). The case may also be put in this way. The decree against Ekradeswar could not have been executed without a further application. This application could not have been made till Ekradeshwar had come into possession of the property of Janeswar and by Art. 181, Sch. 1, Limitation Act, the period of limitation for making an application is three years from the time when the right to apply accrues. The decree against Ekradeswar could not have been executed without a further application. This application could not have been made till Ekradeshwar had come into possession of the property of Janeswar and by Art. 181, Sch. 1, Limitation Act, the period of limitation for making an application is three years from the time when the right to apply accrues. The same might equally be said of the decree in the present case which was not capable of execution against Vassumal or his legal representative until the identity of Vassumal as a partner was established according to the procedure laid down by Or. 21, r. 50 (2), and that therefore the present application cannot by any stretch of imagination be treated as an application under Art. 182, Limitation Act. 28. The same learned Additional Judicial Commissioner expressed the same views in Shivchandra Surajmal v. Shivaldas Hotchand A. I. R. [1931] Sind. 82 at p. 83. 29. In Bhagvan Manaji Marwadi Vs. Hiraji Premaji Marwadi, AIR 1932 Bom 516 a different view was taken by Patkar and Murphy, JJ. At page 518 after setting out the terms of Or. 21, r. 50, Patkar, J., observed as follows: I think that the application under Or. 21, r. 50 is an application for execution of the decree obtained against the partnership and if the liability is not disputed it can be executed against the personal property of the partners who were not served in the suit, but an opportunity is given to any partner or partners, who were not served, to dispute the liability under the decree. 30. Then the learned Judge referred to the observations of Lindley, L. J" in Western National Bank of City of New York v. Parez Triana & Co. [1891] 1 Q. B. 804 and the case of Ramprotab v. Gaurishankar AIR [1924] Bom. 109 and concluded as follows: It would therefore follow that the application for execution of the decree obtained against the firm of Mulchand Roychand is not barred on account of the previous applications made from time to time. Under Or. 21. r. 50, it is permissible for the partners who were not served in the suit to dispute their liability on any valid ground, but the application for execution would be governed by Art. 182, Limitation Act, and is, in my opinion, within time. The application under Or. 21, r. 50, cl. Under Or. 21. r. 50, it is permissible for the partners who were not served in the suit to dispute their liability on any valid ground, but the application for execution would be governed by Art. 182, Limitation Act, and is, in my opinion, within time. The application under Or. 21, r. 50, cl. (2) for leave to execute the decree against the partners who were not served is merely an ancillary application in the application for execution, and unless leave is granted, the decree does not become an executable decree personally against the partners who were not served. So long as the decree is alive an application can be made under Or. 21, r. 50, for leave to execute the decree against the partners who were not served in the suit. Such an application for execution in which an application is also made under Or. 21, r. 50, cl. (2) for leave to execute the decree against the partners who were not personally served in the suit is in my opinion not barred so long as the decree against the firm is alive. 31. Murphy, J., in a separate judgment dealt with the point in a few words at p. 522 as follows: It is next argued that the application under Or. 21, r. 50 is belated and so must fail. No specified period of limitation is enacted for such an application, and I think there is no real difficulty. In this case the application was one for a transfer to the Surat District as well, but in any case it is in essence an application to execute the decree, even though it is coupled with ancillary requests in the shape of that for a transfer and that for execution in the special case and if this is correct Art. 182 would apply and it being made within three years of the last one, would be in time. 32. With great respect to the learned Judges I find myself unable to agree with their conclusion. Patkar, J., concedes that so long as leave is not granted the decree does not become an executable decree personally against the partners who were not served. Therefore he recognises the necessity of an application for leave but calls that application an ancillary application in the application for execution. Murphy, J., calls it as one in essence an application for execution. Therefore he recognises the necessity of an application for leave but calls that application an ancillary application in the application for execution. Murphy, J., calls it as one in essence an application for execution. Nomenclature makes no difference in substance. As soon as the learned Judges concede that an application, by whatever name they call it, must be made before the decree becomes executable against persons not coming within cls. (b) and (c) of sub-r. (1), they must, to be logical, concede that it is in substance and reality separate and different from an application for execution, and as soon as they reach this point they must again logically concede that in sequence of time the application for leave must come first and the application for execution must follow on its heels. It may be an application in the execution proceedings but all applications in execution proceedings, as I have said, are not applications for execution. I agree with Mr. S. N. Banerjee that the reasoning of Patkar, J., does not support his conclusion and in fact makes his conclusion illogical. 33. The case of Bombay Co., Ltd. v. Kahan Singh I. L. R. 13 Lah. 327 (1922). only follows the case of AIR 1929 Lahore 228 . and Addison, J., gives no additional reason at all and therefore this case calls for no further comments. 34. In Hassasing Tahilsing v. Noorbhoy Jafferji A. I. R. [1936] Sind. 12. Lobo A. J. C, simply refers to the judgments of Addison, J. and Patkar, J., in the two cases mentioned above and does not prefer to follow a decision of Rupchand, A. J. C, who, I may mention, was also the Judge in the two earlier Sind cases referred to above and whose reasoning appeals to me. 35. A. H. S. Kuppuswami Ayyar v. Rathilal Somabhai A. I. R. [1935] Mad 926. was a case where an application was made, more than 3 years after the date of the decree, for leave under Or. 21, r. 50 (2). Both the lower Courts dismissed the application as being time-barred under Art. 181 of the Limitation Act. On second appeal Menon, J., agreed with Patkar, J.'s decision and held that the application was not time-barred. This case does not advance the matter any further. 36. In Kissinchand Butamal v. Dhaniram Jamnadas A. I. R. [1936] Sind. 21, r. 50 (2). Both the lower Courts dismissed the application as being time-barred under Art. 181 of the Limitation Act. On second appeal Menon, J., agreed with Patkar, J.'s decision and held that the application was not time-barred. This case does not advance the matter any further. 36. In Kissinchand Butamal v. Dhaniram Jamnadas A. I. R. [1936] Sind. 138, Davis, J. C. and Lobo, A. J. C., followed the earlier cases except those decided by Rupchand, A. J. C, to which I have referred. For reasons already stated I am unable to agree with this decision. 37. The case of Seoomal Khemchand v. Sl. Lahoribai I. L. R. [1939] Kar. 589: A. I. R. (1939) Sind 161 (F. B.) simply follows the last-mentioned case, wherein two of the Judges in the Full Bench case were the Judges. My comments on this case are the same. 38. There is a passage in the judgment of Chatterji, J., in Harnarain v. Dayabhai Hirachand I. L. R. Pat. 909 (1940.) to the following effect: The effect of the leave so granted is that Harnarayan Chuni Lal is liable under the decree. In other words, he must be deemed to be a judgment-debtor. The proceeding for obtaining leave under Or. 21, r. 50 is not an application for execution; nor does the leave granted amount to any order for execution. 39. I set out this passage as it supports my views, although I recognise that the learned Judge does not give any reason for his view and consequently the observation is not of much importance. 40. The last case to which I need refer is that of Cooverji Varjang v. Cooverbai I. L. R. [1940] Bom. 562. There a firm brought a suit against an individual person which was dismissed with costs. The Defendant sought to execute the decree for costs against certain persons as partners of the Plaintiff firm and applied on summons for leave under Or. 21, r. 50 (2). There was no application for execution on a Tabular Statement under Or. 21, r. 11. One of the objections taken before Wadia, J., was that the Court could not entertain the summons as it was filed before any application for execution under Or. 21, r. 11 had been filed. Wadia, J., after referring to the case of Bhagvan Manaji Marwadi Vs. Hiraji Premaji Marwadi, AIR 1932 Bom 516 . 21, r. 11. One of the objections taken before Wadia, J., was that the Court could not entertain the summons as it was filed before any application for execution under Or. 21, r. 11 had been filed. Wadia, J., after referring to the case of Bhagvan Manaji Marwadi Vs. Hiraji Premaji Marwadi, AIR 1932 Bom 516 . which I have mentioned before, observed at p. 567 as follows: In its proper sequence the leave of the Court to execute the decree or order against a particular party should precede execution against such person, for the underlying principle seems to be that in the case of persons who cannot in law be held immediately liable as partners an opportunity must first be given to them to dispute their liability under the decree or order sought to be executed against them. The words 'ancillary application in the application for execution' mean that the application for leave is subsidiary or subordinate to the application for execution, and therefore the application for execution under Or. 21, r. 11 is no doubt the principal application. Though the application for leave is subordinate to the application for execution, it is not a part of the application for execution, and even when leave is granted, the decree-holder cannot execute the decree merely upon the order made on the summons under Or. 21, r. 50 (2). There must be an application for execution under Or. 21, r. 11, but it is nowhere laid down in the Code nor in the High Court Rules that an application for leave to execute can never be made unless and until the application for execution under r. 11 is first filed. It was argued that the application for leave is an application in execution, and all applications in execution must be commenced by an application for execution under Or. 21, r. 11. Strictly speaking, the application under r. 50, sub-r. (2) is an application for leave to execute against persons other than those mentioned in sub-r. (1), cls. (b) and (c). If such persons admit partnership or are proved to be partners the decree or order can be executed or enforced against them, not otherwise. In some cases it may be futile to file an application to execute a decree against persons who may not admit liability or who may not be proved to be partners. (b) and (c). If such persons admit partnership or are proved to be partners the decree or order can be executed or enforced against them, not otherwise. In some cases it may be futile to file an application to execute a decree against persons who may not admit liability or who may not be proved to be partners. There is nothing in the Code to prevent an application under r. 11 being filed along with the application for leave under r. 50, sub-r. (2), or even before such application is made; but in my opinion it is not obligatory to do so. 41. The case went up on appeal before the appeal Court consisting of Beaumont, C. J. and Kania, J., and the appeal was dismissed. I consider it useful to set out the reasoning adopted by the appeal Court in extenso even at the risk of prolixity. After stating the contention of Learned Counsel and setting out sub-r. (2) of Or. 21, r. 50 the learned Chief Justice at p. 573 observed as follows: Therefore, before executing a decree against a firm against some alleged partner who has not been served it is necessary to get the leave of the Court under that sub-rule. It is difficult to see what useful purpose is served in making an application to execute the decree before leave has been obtained. Mr. Munshi contends that an application under r. 50 is an application in execution, and one of the modes of execution which must be specified under r. 11. But the application is one preliminary to taking any effective step in execution against persons who are covered by that rule. Conceding that it is an application in execution, nevertheless it is a special form of application which is covered by a particular rule. It seems to us that it is not apt to say that an application for leave under r. 50 is a mode of execution referred to in r. 11. It is preliminary to any mode of execution, which may be proposed against a particular party. Therefore on the wording of the rule we see no reason to differ from the learned Judge who thought that an application under r. 50 (2) could be made without any previous application for execution under r. 11. It is preliminary to any mode of execution, which may be proposed against a particular party. Therefore on the wording of the rule we see no reason to differ from the learned Judge who thought that an application under r. 50 (2) could be made without any previous application for execution under r. 11. We understand that the learned Judge asked the Prothonotary to inform him what the practice in this matter was on the Original Side, and the Prothonotary made a note to the effect that formerly on the Original Side an application to execute used to be made, and in that application a notice under r. 50 was made returnable before the Chamber Judge to show cause why the decree should not be executed against the particular person alleged to be a partner; but, while the late Sir Dinshah Mulla was the Chamber Judge, he changed the practice, and held that no application for execution could be made until leave was first obtained by the executing creditor, and he directed that that should be done by means of a Chamber summons and not by an application for execution. That practice has since been followed on the Original Side. We are not prepared to go so far as Sir Dinshah Mulla is said to have gone in saying that an application for execution cannot be made unless leave has first been obtained under r. 50 (2). It may be desired to execute the decree against one partner in the firm who has been served and in respect of whom no leave is required and also against another alleged partner who has not been served. We think that an application under r. 11 seeking to execute the decree against these two persons, showing that the application against one of the persons is contingent on leave being obtained under r. 50 (2), would be a good application for execution, and we do not wish to commit ourselves to the view, which seems to have appealed to the late Sir Dinshah Mulla, that an application under r. 50 (2) is not an application in execution. We are inclined to think that it is, but, we are entirely in agreement with the view taken by the trial Judge that it is not necessary to apply in execution first and then apply for leave afterwards. We are inclined to think that it is, but, we are entirely in agreement with the view taken by the trial Judge that it is not necessary to apply in execution first and then apply for leave afterwards. In a case covered by r. 50 (2) we think that the logical course is to apply for leave first, and to execute the decree afterwards. Therefore, in our opinion, the preliminary objection fails. 42. Kania, J., dealt with the point in the words following: The second contention was that before a Chamber summons under Or. 21, r. 50 (2), could be taken out it was necessary to file an application under Or. 21, r. 11, and in default the summons must fail. To support this contention the Scheme of Or. 21 was relied upon. I agree with the line of reasoning stated in the judgment of the Chief Justice just delivered, and want to add a few words on this point. Rule 50 is classified under the heading 'Attachment of Property.' It is clearly out of place there. The preceding and subsequent rules all deal with attachment of property. Rule 50 (1) deals with the question of the Court granting execution. It provides that execution in respect of a decree passed against a firm can be granted against (a) the property of the firm, (b) any person who has appeared under Or. 30, rr. 6 and 7 or who has appeared or been adjudged to be a partner, or (c) any person who has been individually served as a partner, with the summons and has failed to appear. Sub-r. (2) then provides for a contingency where a decree on the face of it is not against any individual persons, nor against persons whose liability has been determined under cls. (b) and (c) of sub-r. (1). The law permits the liability of such person as a partner to be determined and sub-r. (2) provides for that contingency. It assumes, as the word 'claims' shows, that the decree-holder had not so far established his right to cause the decree to be executed against such a person. Therefore he has to go to the Court and ask for leave to cause the decree to be executed against such person in his capacity as a partner. It assumes, as the word 'claims' shows, that the decree-holder had not so far established his right to cause the decree to be executed against such a person. Therefore he has to go to the Court and ask for leave to cause the decree to be executed against such person in his capacity as a partner. The concluding words of that sub-rule show that the question has to be determined as if it was an issue in the suit and to leave no doubt on the question whether the order made under sub-r. (2) was covered by sec. 47 or not, sub-r. (3) provides that the decision shall operate as if it was a decree for the purpose of appeal and otherwise. The question is not whether this is a matter in execution or not. The question really is whether the person who holds the decree against a firm can execute it against a person who is not on the face of the decree a judgment-debtor nor a person whose liability as a partner has actually or in law been determined. When such a person is sought to be made liable, the decree-holder has to come to Court and apply for leave first. The practice reported by the Prothonotary as prevailing for many years past, I believe, is based on the ground that an application for execution should be made after the question, whether the person against whom execution is intended to be taken is liable or not as partner under the decree, is determined. To get that question determined leave is necessary and therefore in my opinion an application for execution under Or. 21, r. 11 is not a condition precedent to an application for leave under Or. 21, r. 50 (2). I therefore agree that the preliminary objection fails. 43. I respectfully agree with the observations I have quoted above although I do not quite like the expression "subsidiary application" used by Wadia, J. These observations, in my opinion, clearly bring out the true principle implicit in Or. 21, r. 50 (2). They fully establish that an application for leave under Or. 21, r. 50 (2) and an application for execution under Or. 21, r. 11 are two different applications and clearly emphasise the sequence in which the two applications should ordinarily be made. They make it clear that an application for leave under Or. 21, r. 50 (2). They fully establish that an application for leave under Or. 21, r. 50 (2) and an application for execution under Or. 21, r. 11 are two different applications and clearly emphasise the sequence in which the two applications should ordinarily be made. They make it clear that an application for leave under Or. 21, r. 50 (2) is a substantive application which can stand on its own legs and need not be propped up by an application for execution and that it has a separate existence of its own. Once I arrive at this conclusion I cannot get away from the further conclusion that an application for leave under Or. 21, r. 50 (2) is not an application for execution under Or. 21, r. 11 and when I reach this point I am bound to finally conclude that it is not governed by Article 182 or Article 183 of the Limitation Act and that there being no specific Article applicable to such an application for leave it must be governed by the residuary Article 181 of the Limitation Act. 44. On an analysis of the terms of Or. 21, r. 50 (2) and the principle to be deduced from the last Bombay case and the decision of Rupchand, A. J. C., in the earlier Sind cases and, if I may say so with respect, inspect of the several decisions to the contrary to which I have referred and for reasons stated above I have arrived at the following conclusions, namely, (i) that an application for leave under Or. 21, r. 50 (2) is a substantive application specially prescribed by that rule and can stand by itself; (ii) that without leave obtained from the Court which passed the decree on an application for leave under Or. 21, r. 50 (2) the decree-holder cannot execute the decree against partners who do not fall within cls. (b) and (c) of Or. 21, r. 50(1) ; (iii) that an application for leave under Or. 21, r. 50 (2) is not the same as an application for execution under Or. 21, r. 50 (2) the decree-holder cannot execute the decree against partners who do not fall within cls. (b) and (c) of Or. 21, r. 50(1) ; (iii) that an application for leave under Or. 21, r. 50 (2) is not the same as an application for execution under Or. 21, p. 11 but the two applications are in reality and substance two different and separate applications; (iv) that the logical course is to apply for leave first and to apply for execution of the decree afterwards; (v) that though it may be possible in some circumstances, e.g., in cases mentioned by Beaumont, C. J. or where there is any question of limitation in respect of a Mofussil decree running out, to combine the two applications yet in reality and substance they are and remain two applications and the better practice ordinarily will be to make two applications in the sequence mentioned above; (vi) that not being the same as an application for execution, an application for leave under Or. 21, r. 50 (2) is not governed by Article 182 or Article 183 but is governed by Article 181 of the Limitation. 45. In view of the above conclusions I am bound to hold that this application, in so far as it asks for execution against the Respondents other than Bangsidhar, is not maintainable, first as no leave under Or. 21, r. 50 (2) has been obtained and secondly, even if this application be regarded as a combined application for leave under Or. 21, r. 50 (2) and an application for execution under Or. 21, r. 11, because the application for leave is barred by limitation under Article 181 of the Limitation Act and as that is barred the rest of the application, namely, for execution, is not maintainable for want of previous leave. This disposes of Mr. S. N. Banerjee's points (a) and (b). 46. I now take up Mr. S. N. Banerjee's last point (c) which also raises the question of limitation in another form. It will be remembered that the Tabular Statement was presented before the Master on May 5th, 1943, and on that date the Master directed a notice to issue returnable before the Judge on May 27th, 1943, which was beyond a period of 12 years from the date of the decree. It will be remembered that the Tabular Statement was presented before the Master on May 5th, 1943, and on that date the Master directed a notice to issue returnable before the Judge on May 27th, 1943, which was beyond a period of 12 years from the date of the decree. The argument is that assuming that the application was one for execution, it was really made for the first time on May 27th, 1943, before the Judge when it was mentioned and adjourned and was therefore out of time. 47. In dealing with this point a distinction has to be made between the case of Bangsidhar on the one hand and the rest of the Respondents on the other hand. As regards Bangsidhar, who had been served with the writ of summons, no leave under Or. 21, r. 50 (2) was necessary and therefore as against him it was a plain and simple application for execution, the decree-holder being entitled to apply for execution at his pleasure and without any leave of Court. The decree being more than one year old, a notice had to be issued under Or. 21, r. 22 (2) (a). As I have said before, the language of the last mentioned rule implies that the decree-holder must first apply for execution and then the Court must issue the notice. In sequence the application for execution comes first and the notice follows. Therefore when the decree-holder presented the Tabular Statement before the Master on May 5th, 1943, the application, so far as it concerned Bangsidhar, was actually made and was within time. Ch. 6, r. 11 of our rules specifies the business to be disposed of in chambers by a Judge. Item 13 of the specified matters comprises all proceedings in execution, or otherwise under a decree or order. Rule 12 of that Chapter prescribes the business which may be transacted by the Registrar or the Master. That rule provides that the Registrar or the Master may transact all such business and exercise all such authority and jurisdiction as under these rules may be transacted or exercised by a Judge in Chambers, except where otherwise prescribed, or in respect of the proceedings and matters therein mentioned. Item 13 under r. 11 is not one of the excepted matters. Item 13 under r. 11 is not one of the excepted matters. Therefore the Registrar or the Master may deal with all proceedings in execution, or otherwise under a decree or order and the application for execution, as against Bangsidhar, was properly made before the Master. Chapter 17 of our Rules deals with "Execution of Decrees and Orders." Rule 11 of this Chapter prescribes that all notices under sec. 145 or under Or. 21, rr. 2, 16, 22, 34 (2) or 37 of the Code, shall be issued by the Registrar or Master; notices under sec. 145 and under Or. 21, rr. 2, 34 (2) and 37 being made returnable before the Judge in Chambers, and notices under Or. 21, rr. 16 and 22 being made returnable before the Registrar or the Master. In this case the Master could have made the notice under Or. 21, r. 22 (1) (a), so far as the application was one for execution against Bangsidhar, returnable before himself. But I apprehend that as the application was also against other persons under Or. 21, r. 50 (2), he made the notice returnable before the Judge. But the point is that the notice under Or. 21, r. 22 (1) (a) followed the application for execution as against Bangsidhar and the application was first made before the Master on May 5th, 1943, and was within time. The Master had jurisdiction, under our rules, to deal with the application, so far as it was for execution against those persons. 48. I now consider the case of the other Respondents. For the purpose of this branch of the argument Mr. S. N. Banerjee assumed that an application for leave under Or. 21, r. 50 (2) was an application for execution but he contended that under that rule the application has to be made to the Court which passed the decree. The Master did not deal with the application but referred it to the Judge in Chambers and issued a notice returnable before the Judge on May 27th, 1943. On May 27th. 1943, the matter was mentioned before the Judge and adjourned. Therefore the application was actually made on May 27th, 1943, which was, under Article 183 of the Limitation Act, beyond the period of limitation prescribed for an application for execution of a decree of this Court. Mr. On May 27th. 1943, the matter was mentioned before the Judge and adjourned. Therefore the application was actually made on May 27th, 1943, which was, under Article 183 of the Limitation Act, beyond the period of limitation prescribed for an application for execution of a decree of this Court. Mr. Banerjee relied on the case of Sreechand Daga v. Sohonlal Daga 47 C. W. N. 450 (1943). where the Court on appeal held that in order to save the bar of limitation it is necessary that the actual application before the Judge should be made within the period of limitation and that the serving of a notice of motion on the Opposite Party, or the filing of the notice of motion in the Registrar's office would not be sufficient. That case was concerned with an application for setting aside the dismissal of a suit. The suit was dismissed on May 19th, 1942. Under Art. 163 of the Limitation Act the Plaintiff had time till June 19th, 1942, to apply for setting aside the dismissal. On June 17th, 1942, the Plaintiff's attorney took out a notice of motion intimating that on June 22nd, 1942, an application would be made for an order that the dismissal of the suit be set aside. It was served on June 17th, 1942, on the Defendant's attorneys. Next day that notice together with an affidavit of service was filed in the Registrar's office. Gentle, J., dismissed the application as time. barred on the authority of Khetter Mohon Singh v. Kassy Nath Sett I. L. R. 20 Cal. 899 (1893). by which he felt himself bound. The Court on appeal upheld the decision of Gentle, J. The learned Chief Justice reviewed the cases and considered the different rules and pointed out the distinction between the warning of an application to be made later and the application itself and giving the expression "application" its ordinary meaning held that the actual application was made after the expiry of the period of limitation. The taking out of a notice of motion is an act done wholly outside the Court and is the act of the party or the attorney. It is not the act of the Court. The taking out of a notice of motion is an act done wholly outside the Court and is the act of the party or the attorney. It is not the act of the Court. If the application is presented to the Court and the Court receives the application and then directs notice of motion to issue and notice is then issued it is plain that the actual application has been made before the notice is issued. Where time is short this is the procedure usually adopted and the application is noted as having been made on the date when it is presented. This course has also been suggested by the learned Chief Justice in his judgment in Sreechand Daga's case 47 C.W.N. 450 (1943). What happened in the present case with which I am concerned is that the Tabular Statement was presented before the Master and the Master ordered that a notice do issue. This case does not come within the mischief pointed out in the case in Sreechand Daga v. Sohonlal Daga 47 C.W.N. 450 (1943). The presentation of the Tabular Statement before the Master appears to me to amount to making the application for execution. If the application was not made I do not see how the Master could make any order for the issue of a notice or how a notice could be issued by the Court offices. The language of the notice itself specifically states that an application has been made to the Court. The only question is whether the application was made before a tribunal having jurisdiction. As I have said, under Chapter 6, r. 11 of our Rules, all proceedings in execution or otherwise under a decree or order are to be dealt with by the Judge in Chambers and under r. 12 of that Chapter such proceedings can be transacted by the Registrar or the Master. Therefore the Tabular Statement, as an application for execution, was properly presented before the Master and as the Master made an order on it the application must be taken as having been actually made on May 5th, 1943, and was not barred under Article 183 of the Limitation Act as an application for execution. 49. I have, however, held that an application for leave under Or. 49. I have, however, held that an application for leave under Or. 21, r. 50 (2) is not an application for execution and as an application for leave, simplicities, it is barred under Article 181 of the Limitation Act. It will therefore serve no useful purpose by setting this application down for trial of the question of liability of the Respondents other than Bangsidhar or to discuss the other points which, as I have said, were not argued by Mr. S. N. Banerjee. 50. The result, therefore, is that execution should go against Bangsidhar but only as regards his shares in the limited company and it should be dismissed as against the other Respondents and I order accordingly. 51. It appears that all the Respondents appeared through the same attorney and same Counsel. The practice of our Court of combining an application for leave with an application for execution appears to have induced the belief, which I consider to be erroneous, that it is one application for execution and is governed by Article 183 of the Limitation Act. Taking all these circumstances into consideration I do not make any order as to the costs of this application except that each party should bear and pay his own costs. Before leaving this case I again desire to emphasise that our practice is calculated to mislead the profession and the litigant public as I find it has done in the present case. This practice obtained in the Bombay High Court until it was altered there by Sir Din-shaw Mulla. The present Bombay practice introduced by Sir Dinshaw Mulla as mentioned in the case of Cooverji v. Cooverbai I. L. R. [1940] Bom. 562. appears to me to be more logical and certainly has the merit of preventing confusion and promoting clarity by emphasising that an application under Or. 21, r. 50 (2) is a special application prescribed by that rule. Speaking for myself our practice should also be the same. The fact that there is no provision in Chapter 17 of our Rules for the issue of a notice by the Registrar or the Master in the case of an application under Or. 21, r. 50 (2) such as there is in connection with other applications as mentioned in r. 11 of that Chapter and the fact that Or. The fact that there is no provision in Chapter 17 of our Rules for the issue of a notice by the Registrar or the Master in the case of an application under Or. 21, r. 50 (2) such as there is in connection with other applications as mentioned in r. 11 of that Chapter and the fact that Or. 21, r. 50 (4) speaks of a summons to appear and answer which, in the case of an application under Or. 21, r. 50 (2), must mean summons of that application, indicate that it was intended that the application for leave under Or. 21, r. 50 (2) should ordinarily and except in special circumstances I have mentioned be on a summons and our practice should in my opinion be revised and altered accordingly.