R PALANIAPPA MUDALIAR Vs. M M MARIAPPA MUDALIAR

JUDGEMENT

(1.) The decree-holder, appellant in the lower court, prefers this appeal from the judgment and decree of the District Judge of Tiruchirapalli dated 2-9-1957 in A. S. 331 of 1956 on his file. (1a) The appellant obtained a decree for money against the respondent in the court of the District Munsif, Karur, on 9-9-1948. He filed an application E. A. No. 269 of 1953 on 14-2-1953 in the court of the District Munsif, Karur, for the transfer of the decree to the District Munsif's Court, Tiruchirapalli for execution. Notice of that application was sent to the judgment-debtor-respondent. He did not appear. An order was passed ex parte directing the transfer of the decree to the District Munsif's Court, Tiruchirapalli. In the District Munsif's court, Tiruchirapalli the appellant filed E. P. No. 460 of 1953 for the execution of the decree. That application was dismissed as not pressed. Then on 3-4-1956 the appellant filed E. P. No. 302 of 1956 in the court of the District Munsif Karur, praying that the decree might be recalled from the court of the District Munsif, Tiruchirapalli, and that the properties of the respondent might be attached and sold. The judgment debtor appeared and pleaded that execution was barred by limitation. The ground urged in support of that plea was that the application for the transfer of the decree viz., E.A. No. 269 of 1953 had been filed more than three years beyond the date of the decree, that that application was barred and that consequently the subsequent applications were also barred. It was admitted in the lower court and it is admitted at the hearing of this appeal that, if that application namely E. A. No. 269 of 1953 was in time, the subsequent applications would be in time as well.

(2.) On the question whether the application E.A. No. 269 of 1953 was in time, the lower courts have held that it was not. That finding has not been challenged by the appellant's learned counsel at the hearing of this appeal. If that question, viz. whether E.A. No. 269 of 1953 was in time, was open for adjudication in these proceedings, the answer should be that it was not.

(3.) The decree-holder contended that the question whether E. A. No. 269 of 1953 was in time was not open for adjudication in these proceedings because the order directing the transfer of the decree passed in that execution application should be held impliedly to have decided that that application was in time and the respondent judgment-debtor was thereby barred on principles analogous to res judicata from contending in these proceedings that that application was not in time. That plea of the decree-holder was overruled by the lower courts, and his petition E. P. No. 302 of 1956 was dismissed. The decree- holder appeals.