MAHADEO GOPALBHAT Vs. TRIMBAKBHAT BALAMBHAT

JUDGEMENT

(1.) This appeal arises out of execution proceedings. The decree under execution was passed on the 12th of December 1910. It was a partition decree in which the shares of the plaintiff and the defendants were determined. The defendant No. 4 made an application No. 789 of 1914, for execution of the decree, on the 2nd of November 1914. That application was rejected as time-barred. The order made thereon was in these terms: "The Darkhast was given on the 2nd of November 1914. The decree was passed on the 12th of December 1910. It is therefore not in time under Article 182 of the Limitation Act. The applicant says that it is in time because the defendant No. 5 had given some Darkhasts to execute the decree against some defendants within three years from the date of the decree and this Darkhast was given within three years from those Darkhasts. This statement itself is too vague. He does not give even the numbers of the Darkhasts or their dates. He produces no copies to show them. His pleader fails to show that it is in time. It is therefore rejected with costs as time-barred." The present application for execution was made on the 13th of January 1915 and he pleaded that it was within time in consequence of certain earlier applications made by other parties and that there were acknowledgments of the liability under the decree by some of the defendants. On this the following issues were raised by the Court of first instance :--(1) Does the applicant prove that the Darkhast is in time as alleged by him? and (2) Whether in view of the order in Darkhast No. 789 of 1914, the point of the present application being in time is not res judicata. The learned Second Class Subordinate Judge was of opinion that the Darkhast was in time but rejected it on the ground that the order in Darkhast No. 789 of 1914 operated as res judicata. The defendant No. 4 appealed to the District Court and the learned District Judge agreeing with the Subordinate Judge came to the conclusion that the order in the said Darkhast operated as res judicata and dismissed the appeal summarily without expressing any opinion as to whether, apart from the plea of res judicata, the application would be in time.

(2.) Defendant No. 4 has preferred this appeal against the decree of the lower appellate Court and has contended that the order in the Darkhast of 1914 cannot operate as res judicata. The respondents have not appeared, though they have been served, and I have not had the advantage of hearing any argument in support of the view which has found favour with the lower Courts.

(3.) The point is by no means free from difficulty. It seems to me, however, that the true reading of the order made on the Darkhast of 1914 involves the result that the question whether the present Darkhast is in time as alleged by the applicant is not res judicata. Any order previously made in execution proceedings would undoubtedly be binding upon the parties in all subsequent proceedings and would operate as res judicata. The ground upon which such an order is binding upon the parties is thus stated in the case of Ram Kirpal Shukul v. Mussumat Rup Kuari (1883) L.R. 11 I.A. 37, 41: "It was as binding between the parties and those claiming under them as an interlocutory judgment in a suit is binding upon the parties in every proceeding in that suit, or as a final judgment in a suit is binding upon them in carrying the judgment into execution. The binding force of such a judgment depends not upon Section 13, Act X of 1877, but upon general principles of law. If it were not binding there would be no end to litigation." That is, as I understand the observations, the provisions of Section 11 of the Code do not in terms apply to an order made in execution proceedings but that anything decided by that order must be treated as binding upon the parties in the subsequent proceedings. If it was essential for the plaintiff to rely upon the Darkhast of 1914 as being in time undoubtedly he would be prevented from showing that that Darkhast was not barred by limitation as it was in terms rejected as time-barred. But the order does not purport to decide the question as to whether any other Darkhasts and acknowledgments, such as are now relied upon, are sufficient to save the present application. No doubt if the principle of explanation IV to Section 11 were applied, it would mean that the Court in dismissing the application of 1914 decided that the other applications and acknowledgments were not sufficient to save limitation. The rule of res judicata applicable to execution proceedings makes all decisions binding upon the parties in subsequent proceedings but it does not necessarily involve the result that any point which is not heard and decided but which might and ought to have been raised must be treated as necessarily decided as under Section 11 of the Code. No doubt the proceedings now relied upon as saving limitation might have been made a ground for saving the application of 1914. But if it is not made a ground and if there is no decision on the point, I do not think that the application of the doctrine of res judicata to execution proceedings would involve the result that it should be taken to have been decided. At least, as I read the decisions bearing on this point, I do not understand the rule to go so far. As it is not essential for the purpose of determining whether the present application is in time or not for the plaintiff to establish that the application of 1914 was in time I do not think that the rejection of that application on the ground that it was not shown to be within time can operate as decisive of the question whether the other applications and acknowledgments, which are now brought to the notice of the Court, are in fact sufficient to save limitation. The two cases which have been relied upon by the Court of first instance are in my opinion distinguishable on their facts In the case of Bandey Karim v. Romesh Chunder Bundopadhya (1882) I.L.R. 9 Cal. 65, 67, the facts show that the execution of the decree was held to be barred prior to the application in which the question as to res judicata arose and the learned Judges distinctly observed : "We do not, on the present occasion, propose to go into this broad, general, and probably difficult question, whether the principle of res judicata as enunciated in Section 13 of the Code of Civil Procedure applies in all its generality to proceedings after decree. We limit our decision to the exact question which is raised in the present case, and that is, whether the Court, having once decided that the execution is barred by limitation, that decision is a bar to further execution."