MANNU LAL Vs. HANUMAN SINGH

JUDGEMENT

(1.) This is a decree-holder's appeal against a decree of the learned Civil Judge of Fatehpur allowing the judgment-debtor's objection that the appellant's application for execution was barred by time. The matter came up before one of us, who, in view of some conflict of opinion upon the point to be decided in the case, referred it to a Bench, The facts briefly stated are as follows :

(2.) A decree for money was passed in favour of the appellant on 27-6-1930. The appellant filed an application for execution on 3-7 1933. This was within time as it was filed immediately on the re-opening of the Court after the summer vacation. This application was dismissed on 28 7-1933. The second execution application was filed on 25-7-1936. This was dismissed on 27-8-1936. Then the present application for execution was filed on 19-9 1942. It is conceded by both the parties that unless the question of limitation is barred by res judicata it must be held that this application was beyond time even after excluding time by virtue of the Temporary Postponement of Execution of Decrees Act, X [10] of 1937. The circumstances in which the doctrine of res judtcata is claimed to apply to the facts of the case arose in the following manner. Upon this application being presented a notice was issued to the judgment-debtor under Order 21, Rule 22, Civil P. C., to show cause why the execution should not proceed. The judgment-debtor did not appear and the Court ordered on 22-12 1942 that execution may proceed. Some property was attached during the course of the execution proceedings. The Amin's report dated 1-3.1943 shows that the property had been attached. A sale proclamation was issued by the civil Court and then the execution case was transferred to the collector. Daring the pendency of the proceedings in the Collector's Court, Ram Lal Singh judgment-debtor died. The Collector sent the papers of the case back to the civil Court in order that legal representatives of the judgment-debtor may be brought on the record. On 88-7-1945, Hanuman Singh respondent was brought on the record as the legal representative of the deceased judgment-debtor. On 9-10-1945, Hanuman Singh filed an objection to the execution proceedings in the civil Court stating that the execution was barred by time. This objection was dismissed by the Munsif Hanuman Singh then appealed to the lower appellate Court which held that the objection was well founded and dismissed the execution application. Against this decree, the decree-holder has come up in appeal to this Court and the point urged on his behalf is that the plea of the judgment debtor that the execution application was barred by time was itself barred by the doctrine of res judicata by virtue of the order dated 22-12-1942 and should not be allowed to be raised.

(3.) On behalf of the respondent reliance has been placed upon a Full Bench decision of this Court reported in Genda Lal v. Hazari Lal 1935 A. L. J. 1189 : (A. I. R. (23) 1986 ALL. 21 P. B.). In this case Sir Shah Sulaiman laid down five propositions. The fifth one is relevant and may be quoted.