KALLEPALLI RAJILAGIRIPATHY Vs. KALLEPALLI BHAVANI SANKARAN

JUDGEMENT

(1.) This appeal relates to the execution of a decree, dated 27 April 1918. On 26 April 1919 the transferee decree-holders applied for recognition of their transfer and for execution. However, in consequence of an attachment of the decree this petition was dismissed. The next petition was put in on 4-4-1922 asking for the transmission of the decree to the District Court for execution, and on 26-4-1922 the present execution petition was filed. It was contended that the present petition was barred by limitation, but four grounds were urged by the decree- holder for allowing execution. The District Judge has held that two of these grounds were valid and has ordered execution to proceed. Now, this appeal is filed by the 1 defendant, the judgment-debtor.

(2.) The first ground taken is that the plea of limitation is res judicata by reason of the order on the application of 4-4-1922 directing the transmission of the decree to the District Court. It has been held in the Calcutta Court in Sreepati Charan Chowdhury V/s. Shamaldhone Dutt 8 Ind. Cas. 22 : 15 C.L.J. 128 : 16 C.W.N. 661 and in Chutterpat Singh V/s. Saita Sumarimal 36 Ind. Cas. 602 : 20 C.W.N. 889 : 23 C.L.J. 615 : 43 C. 903 that, when an Order for transmission of the decree is made, no question of limitation is decided and therefore, such an order does not amount to res judicata on the question of limitation. In fact, in the former case, Mukerjee, J. held that the judgment-debtor could not at that stage possibly contend that the decree was barred by limitation but, apparently no notice was issued to the judgment-debtor under Section 248 of Civil P. C.: the Court held further that, even though notice under Section 248 is issued, it is not competent for a judgment-debtor at that stage to contend that the decree ought not to be transferred because an application for execution thereof is likely to prove infructuous as being barred by limitation. In the judgment no authority is given for this proposition of law and possibly it is based upon the rules of the Calcutta High Court, which do not require the issue of a notice to the judgment-debtor in an application for transmission of the decree. On the other hand, in Madras, under Rule 161(3) of the Civil Rules of Practice, a notice should be issued, and a notice was accordingly issued in this case. It is now urged for the respondent that the judgment-debtor had an opportunity of appearing and pleading that the application was barred by limitation, and it would seem that, when there was that opportunity Section 11, explanation (IV) would be applicable and that the question would be res judicata because it was one which might and ought to have been put forward to show that the decree was not one that could be executed. In fact in Mungal Pershad Dichit V Grija Kant Lahiri 8 C. 51 : 11 C.L.R. 113 : 81 A. 128 : 4 Sar. P.C.J. 219 : 4 Ind. Dec. (N.S.) 82 (P.C.) it was held that, where an execution petition was barred by limitation but execution had been ordered to proceed it was not open to the judgment-debtor in a subsequent application to plead that the former application was barred by limitation. Similarly in Rajah of Ramnad V/s. Velusami Tevar 59 Ind. Cas. 880 : 40 M.L.J. 197 : 19 A.L.J. 168 : 18 L.W. 290 : (1921) M.W.N. 51 : 88 C.L.J. 818 : 20 C.W.N. 581 : 23 Bom. L.R. 701, the Privy Council held that, when an assignee of a decree applied to be brought on the record and to have the decree executed, execution was allowed although the judgment-debtor had raised the plea that execution was barred by limitation. In the order allowing execution, the plea of limitation was not dealt with specifically but it was held that in a subsequent application the plea of limitation could not be urged, for it must be deemed to have been decided in the order on the former application. In that case the plea was raised in the first proceedings but their Lordships remark in the judgment (at p. 200). It was not only competent to the present respondents to bring the plea forward on that occasion but it was incumbent on them to do so if they proposed to rely on it. No appeal was brought from the order then made and therefore it was not competent for the Subordinate Judge to admit the plea on the subsequent proceedings.

(3.) It would appear from this that, even in an application for transfer of a decree, it is open to a judgment-debtor to plead limitation and in fact he ought to do so. If the decree is barred by limitation, the transfer of it to another Court is a mere infructuous proceeding which ought not to be taken and there-fore if a valid plea of limitation is available, it should be urged in order be prevent multiplicity of proceedings. In this view we think that the District Judge's order in the present case was correct.