ASWINI KUMAR DAS GUPTA Vs. KARAMAT ALI KHA

JUDGEMENT

(1.) This appeal is on behalf of the decree-holder. The appellant obtained a final decree in a mortgage suit on 6 September 1938. On an allegation that the judgment-debtor had paid a sum of Rs. 7 towards the decree the appellant started execution proceedings on 7th September 1942. Notice under Order 21, Rule 22, Civil P.C., was directed to be issued and it appears from order No. 11 dated 7 January 1943, that the notice under Order 21, Rule 22, Civil P.C., had been served prior to that date. The Court directed the decree-holder to file the costs and necessary processes by 14 January 1943. The judgment-debtor did not appear on that date in pursuance of the notice under Order 21, Rule 22, Civil P.C. On 14 January 1943 the judgment-debtor appeared and prayed for time to file objections to the execution of the decree. On his prayer time was allowed till 21 January 1943. On that date neither the decree-holder nor the judgment-debtor appeared. The judgment-debtor did not file any petition of objection for which time was granted to him. As the decree-holder did not appear to take further steps the execution case was dismissed for default on 21 January 1943. Two days later on 23 January 1943, the judgment-debtor filed a petition of objection to the execution of the decree but this petition was not entertained as the execution case bad already been disposed of. On 18 January 1944 the decree-holder filed another petition for execution of the decree. The order recorded on that date is to the following effect: Application filed on 18 January 1944. Enter in (R) 5 and put up on 22 January, 1944 for orders Decree-holder to file all requisites and fill up columns 3 and 8 correctly in the meantime. The execution case was registered as execution case No. 8 of 1944. On the next day costs etc. were filed but certified copy of the satisfaction petition was not filed on that date. The Court directed the decree-holder to remove the defects of the application by 28 January 1944. On that date the case was adjourned to 5 February, 1944 on the decree-holder's prayer to take necessary steps. On 5 February, 1944 the defects were recorded to have been removed but the case was adjourned in order that the decree-holder may call for the records of the earlier execution case. After certain intermediate orders it appears that on 29 March 1944 the records of the previous execution case were received. The case was to be put up for further orders on the next day which was 30 March 1944. The Court directed the issue of notice upon the judgment-debtor to show cause by 80 March, 1944 if the payment as alleged by the decree-holder and mentioned in column 5 of the execution petition was true or not. This notice is on the records of this case and it appears that no steps were taken by the decree-holder to have the notice served. On the next date, i.e., 30 March 1944 the decree-holder filed a petition stating that service of notice under Order 21, Rule 22, Civil P.C., was not necessary. By order No. 8 passed on the same date the Court held that there was no necessity for issuing notice under Order 21, Rule 22, Civil P.C. The order then proceeded to say "Cost and process put in Issue notice under Order 21, Rule 66, Civil P.C. fixing 2 May, 1944 next for return." On 2 May, 1944 the Court recorded the following order: Notice served. The decree-holder files a process fee of Rs. 1 only. It appears that the decree-holder did not file any petition under Order 12 which is required under the rules, Put up on 12 May 1944 for further orders. The decree-holder to remove all defects and to put in all requisites by this time with a petition showing the cause of delay. On 12 May 1944 the Court directed that the decree-holder do issue registered card on the judgment-debtor to show cause why the execution case shall not proceed as against them as time barred. To 27 May, 1944 for return and order. The decree-holder do send the card in the meantime. On the next day, 27 May 1944, the judgment-debtor prayed for time to file objection in this case The case was adjourned to 6 June 1944 for filing objection and vakalatnama. On 6 June 1944 the order as recorded is this: It appears that no objection has been filed. Issue sale proclamation under Order 21, Rule 66, Civil P.C. and fix 7 August 1944 for sale at 12 noon. Sale notice to be advertised in the local newspaper, "Kashipurnibashi". On 7 June 1944 the order recorded runs to the following effect: It appears that claim and cost of the suit have not been noted in the execution application by decree-bolder. The suit Register has been sent to Dacca. Let it be filled up with reference to the decree (illegible). On 28 June 1944 the respondent judgment-debtor filed a petition of objection under Section 47, Civil P.C.

(2.) This objection was registered as Misc. Case No. 369 of 1944. The objections were disallowed by the trial Court, the execution petition being held to be not barred by limitation. On an appeal being taken by the judgment-debtor the lower appellate Court has reversed the order of the trial Court and has held that the present execution is barred by limitation. The lower appellate Court was of opinion that the judgment-debtor was not precluded from raising the plea of limitation either because of the orders passed in the first execution case or of the orders recorded in the present execution case. Against this decision the decree-holder has raised this appeal.

(3.) Mr. Guha appearing on his behalf has argued that the judgment-debtor is precluded from raising the plea of limitation by reason of principle analogous to res judicata. His contention is that the order passed on 7 January 1943 was an adjudication that the decree was capable of execution on that date and as this order has stood unchallenged either by way of review or by way of an appeal against that order the judgment-debtor is disentitled from saying that the first petition for execution was beyond time. In my opinion, this contention is correct and must be given effect to. The order of 7 January 1943 was passed after a notice under Order 21, Rule 22, Civil P.C., had been served on the judgment-debtor calling upon him to show cause why the decree should not be executed against him. The judgment-debtor did not appear in pursuance of that notice and the Court directed the decree-holder to take further steps in execution of the decree and directed him to file the process and costs. It may be pointed out that although in the petition of objection filed by the judgment-debtor it was generally stated that all processes had been suppressed the judgment-debtor did not examine himself or adduce any evidence in support of his plea, as it appears from No. 23 dated 30 August 1944 which is to the effect that "neither party examined any witness." The entry in the order sheet is, as has been held in Gaibandha Loan Office V/s. Mt. Saiyadunnessa Khatun evidence under Section 35, Evidence Act, of proof of service. It must, therefore, be hold that notice under Order 21, Rule 22, Civil P.C., was served in this case. In this view it must be taken that the Court in passing its order on 7 January 1943 was of opinion that the decree was executable and further process in execution might be taken in execution of the decree. The order necessarily implied an adjudication that the decree at the time was capable of execution. This view is supported by the decision in Murlidhar Sukul V/s. Narsingh Das ( 13) 17 C.W.N. 113 at page 115 on which reliance has been placed by Mr. Guha appearing on behalf of the appellant. The order dated 7 January 1943 stands unchallenged and has not been set aside by the judgment-debtor; the fact that the execution case was dismissed for default at a later stage does not, in my opinion, matter: see Kamini Devi V/s. Aghore Nath ( 10) 11 C.L.J. 91 Mr. Guha has relied on several other decisions of this Court in which the same view has been taken. Two of the cases, namely, the case reported in Lalit Mohan V/s. Sarat Chandra and the case reported in Promotha Nath V/s. Habu Mia , reaffirm the principle enunciated in Murlidhar Sukul v. Narsingh Das ( 13) 17 C.W.N. 113 referred to above.