KRISHNAN NAIR Vs. PHILIP

JUDGEMENT

(1.) The only question in this second appeal by the 4th defendant, judgment debtor, is whether the decree is barred. The latest execution petition was filed in 1953 and would have been in time if the just prior one filed in 1122 had not been judicially disposed of. Notice of the execution petition of 1953 was issued to 4th defendant but it returned with the endorsement that he had refused to accept it. The executing court accepted the return as sufficient service and passed orders under O.21, R.6 transferring the decree for purpose of execution to another court. When the matter came before the transferee court the 4th defendant raised the question of limitation and also pleaded that there had been no service of notice on the execution petition from the transferor court. The transferee court did not go into the question of proper service of notice or otherwise but decided the question of limitation on the merits against the decree holder. In appeal, the court below has now found that the 4th defendant was precluded from raising the question of limitation because it must be deemed to have been decided against him on the principle of constructive res judicata.

(2.) Learned counsel for the 4th defendant says that there was no specific order of the transferor court deciding the question of limitation in terms or even impliedly the question of further executability of the decree. There was only an order to send the decree by way of transfer. This argument however overlooks the real scope of a transfer order. O.21, R.6 provides for the despatch, along with a copy of the decree, of a certificate of non satisfaction as well as a copy of the order for the execution of the decree or if no such order has been made a certificate to that effect. It is not the plea in this case that any certificate of the last type was actually sent. In the circumstances the implication arising from transferring the decree for purpose of execution - in this case the execution petition was actually sent over for pursuing further processes-is that the decree is capable of execution and further execution is desired.

(3.) There is a recent derision in Prayagdas Shankerlal v. Indirabai AIR 1948 Nag. 189 to say that the court in exercising its jurisdiction under O.21, R.6 is acting judicially and not merely ministerially. The learned Judges observe: -