VARGHESE ANNAMMA Vs. CHACKO GEORGE

JUDGEMENT

(1.) The short question that arises for consideration in this execution second appeal is whether a judgment debtor who did not raise the objection that execution of the decree is barred by limitation, on receipt of notice under O.21 R.22 of the Code of Civil Procedure, 1908, is debarred from raising that contention at a later stage in the execution proceedings. In this case, the notice itself contained 'an invitation to the judgment debtor to show cause how the decree was not barred by limitation'. The assignee decree holder in O. S. No. 7 of 1111 of the District Court, Quilon is the appellant. E. P. No. 222 of 1964 was filed by the assignee decree holder before the Sub Court, Quilon. As notice could not be served on the judgment debtors, substituted service was ordered and the appellant decree holder caused O.21 R.22 notice published in the Malayala Rajyam daily dated 14-8-1966. Though it was mentioned in the notice itself that the decree holder has prayed for execution of the decree finding that the execution was not barred by limitation, the judgment debtors did not appear in Court and raise any objection. On 16 8 1966 the Court ordered further steps as no objection that the execution of the decree was barred by limitation was taken by the judgment debtors. Accordingly, O.21 R.26 notice was sent and on 16-12-1966 the second judgement debtor who is the 7th respondent in this appeal filed an objection that the execution petition was barred by limitation. But the Court did not consider that objection and the decree holder was allowed to proceed. On 22-6-1968 the property was sold in execution. Thereupon, the second judgment debtor filed E. A. No. 737 of 1968 for setting aside the sale alleging that the execution petition was barred by limitation and the sale was vitiated by fraud and material irregularity. E. A. No. 736 of 1968 was filed by the vendee of the second judgment debtor also raising similar contentions. The execution petition and the above execution application were subsequently transferred to the Sub Court, Kottarakkara by the District Court as per order dated 1-12-1971 and they were renumbered. The court allowed the execution applications and in allowing them the court also found that the decree was barred by limitation when E. P. No. 222 of 1964 was filed on 30-11-1964. Against the above order of the execution court the assignee decree holder who is the appellant here went in appeal before the court below. The court below came to the conclusion that the objection raised by the second judgment debtor regarding limitation was not barred by res judicata and that E. P. No. 222 of 1964 was filed when the execution of the decree was already barred by limitation. Accordingly, the appeal was dismissed and the order of the execution court confirmed. It is against the above judgment of the court below that the assignee decree holder has come up in this execution second appeal.

(2.) In this case the judgment debtors did not raise objection regarding limitation when notice was issued on the execution petition under O.21 R.22 of the CPC. and the execution court directed the decree holder to proceed with the execution. Then the question is without challenging the above order of the execution court can the judgment debtors raise the objection regarding limitation at a later stage. In Krishna Mohan Samanta v. Khandu Moyee Dasi (AIR 1954 Calcutta 295) it is said:

(3.) O.21 R.23 of the C. P. C. reads: